Article First. On the Possessor in Good Faith

437. A possessor in good faith is said to be one who invincibly does not know that the thing possessed by him belongs to another. The obligations of a possessor in good faith are referred: a. to the thing itself; b. to the fruits received from it; c. to the expenses made for it.

Obligations by reason of the thing. In general a possessor in good faith must restore only as much as he still possesses of another's thing, but he is not bound to repair the damages which the owner has suffered, because they occurred to the owner without his fault. Now, in order that the obligations of the possessor in good faith by reason of the thing may be determined in particular, three different hypotheses must be distinguished: a. if he still possesses the thing; b. if the thing has perished; c. if another possesses the thing.

438. If he still possesses another's thing, 1. he is bound of itself to restore it to the owner, if he is known, as soon as possible, unless meanwhile the thing has been prescribed; because a thing cries out for its owner.

a. If he possesses the thing not in whole but only in part, he must restore the part which he holds. If meanwhile the thing has become worse, and indeed without the profit of the possessor, he must restore it in the state in which it now is, even if from the fault of the possessor it has become worse; if it has become worse with the profit of the possessor, he must also restore the profit by which he has become richer. If meanwhile the thing has been made better, he must restore the thing as it is, unless it is mixed with others so that it cannot be separated: for in this case the possessor receives ownership of the other's thing if, in the mixture, his own thing is principal; but he must restore that by which he has become richer. But if he must restore the better thing itself, he can deduct the expenses of improvement.¹

b. If he culpably delays restitution, he is bound to compensate the damages which arise from the delay of restitution: for if he knowingly retains another's thing, he becomes a possessor in bad faith and is bound concerning the damages.

c. If the owner is unknown and there is no hope of finding the owner, the possessor in good faith can retain another's thing for himself: for the thing is held as abandoned; therefore the possessor acquires ownership of it by right of occupation.

d. Unless it has been prescribed: for in the possessor in good faith the conditions required for prescribing can be present; when these truly exist and are completed, he can retain the thing for himself.

2. But it is not necessary that he always restore the thing to the owner himself; sometimes he can return it to the one from whom he received it: for one must distinguish whether he received the thing gratuitously or by an onerous title.

a. If he received the thing gratuitously, it is not permitted to return it to the donor or thief, but it must be restored to the owner himself: for the thing cries out for its owner.

b. If he bought the thing and the owner appears to vindicate the thing to himself (in the case of eviction), he is bound to return it to the owner, even with loss of the price: for the owner can vindicate his own thing to himself wherever he finds it, since he has a right in the thing. Yet the possessor has recourse to the seller; but if he cannot recover the price from the seller, he must consider the loss of it as a misfortune and bear it patiently.²

c. If the owner does not appear (outside the case of eviction), that is, if the owner indeed is known but is unaware of the thing, it is permitted to the possessor to return the thing to him from whom he received it, in order to recover the price given by himself, unless by another way he can render both himself and the owner unharmed. If he cannot recover the price, he must bear the loss of it.

alpha. For this opinion a twofold reason can be adduced: he who returns the thing to the thief and places it back in the state in which it was before, on the one side indeed inflicts no damage directly on the owner, and on the other side is not bound to preserve the thing for the owner with his own damage; thus a finder too would licitly replace the thing found, which he could not preserve without his own damage, in the place where he had found it. Next, all the conditions are present which are required so that this action can licitly be placed for recovering one's own goods, although from it damage to the neighbor is foreseen to follow indirectly. And indeed the action, namely the rescission of the contract, is licit in itself; the end which is intended, namely to keep oneself unharmed, is upright and follows immediately from the action; finally there is a proportionately grave cause for permitting the damage of the neighbor, namely to prevent one's own damage equal to the neighbor's damage.³ Ordinarily indeed there will be no other means for the buyer of recovering the price given, unless he returns the purchased thing to the thief; but if another existed, he would be bound to use it: for he would act against justice by again exposing to danger, without just cause, the owner's thing already placed in safety.

beta. More recent laws sometimes establish that the owner cannot recover his own thing from a possessor in good faith, who bought it or received it by another onerous title, unless its price has been paid, when he bought the thing at a fair, or at auction, or from a merchant who usually sells things of the same kind.⁴ Concerning a disposition of law of this kind one must first investigate whether the mind of the legislator is only to deny the owner a civil action in recovering his own thing unless he pays its price, or whether his mind is to transfer ownership in the possessed thing. If the latter, it is asked whether this disposition of law has value in conscience. Most authors indeed probably affirm this question, because the civil power so establishes by reason of the common good, namely that commerce among men may be rendered easier and possession more secure; but this reason of common good seems sufficient for the civil authority to be able to use its power of transferring ownership.

¹ Cf. Ballerini-Palmieri III, n. 416 s.

² Lugo, disp. 17, n. 1.

³ Cf. St. Alphonsus, n. 569.

⁴ A.C. Sections 367, 368. G.A. commerc. Sections 306-308.

439. If another's thing has perished, one must distinguish whether it perished with the possessor in good faith himself or with another; and in this latter case, whether the possessor in good faith handed the thing over to another without profit or with profit.

1. If the thing perished with the possessor in good faith, whether he consumed it, lost it, or destroyed it, he is bound to nothing unless he has become richer from it; but if from it he did become richer, he must restore to the owner that in which he has become richer. The reason for the first is that one who consumes or destroys a thing which he thought was his own inflicted injury on no one, even if deliberately and by his own fault he had lost it. In this case the owner must consider the loss of the thing as his own misfortune and patiently tolerate it. The reason for the second is that that in which he has become richer constitutes the equivalent of the thing, which pertains to the owner.

a. The equivalent of a thing is called that into which someone has become richer from that thing. Someone becomes richer from another's thing insofar as from it he has something which otherwise he would not have had; and this can happen in two ways: either because from a thing received gratuitously he has fruits, or because he spares his own thing while he uses another's, as when someone spares his own calf while he eats the flesh of another's.

b. What is said of a thing consumed also holds for a thing made worse: namely, if the owner has made the thing worse by applying it to his own uses, he must restore that in which by this reason he has become richer. Therefore he who in good faith wore a garment belonging to another, received as a gift, and nearly wore it out, is bound, if the owner becomes known, to restore the garment and in addition to pay as much as otherwise he would have worn out of his own garment.

2. If the thing perished with another, diverse hypotheses are to be distinguished.

a. If he donated to another a thing belonging to another, received gratuitously, when otherwise he was going to donate nothing, he is bound to nothing, because he did not become richer; but if in place of that thing he would have donated his own, he is bound to restore the price of this, because by this he has become richer.

b. If he sold to another a thing belonging to another, received gratuitously, he can, as it seems, retain the price of the thing, because it is not certain that it must be returned either to the owner or to the buyer.

Authors bring forth three different opinions about this matter:

alpha. Some (Carriere, D'Annibale) judge that the price must be restored to the buyer, because the sale of another's thing is null, and therefore the seller does not acquire ownership of the price, or at least the buyer has a right of recovering his money. But this is true only in the case of eviction, which does not occur here; outside the case of eviction, the seller in good faith acquires ownership of the price of the thing sold.

beta. Others think that the whole price must be returned to the owner, because the possessor in good faith has truly become richer by that whole price. Moreover by returning the price he suffers no damage; on the contrary, the owner unjustly despoiled of his thing is forced to undergo the whole damage; but there is no reason why the owner should suffer the damage rather than the possessor in good faith be deprived of profit received from another's thing. This opinion, which among more recent authors Gury and Lehmkuhl defend, is called common. But the owner, who always retains ownership in his own thing, has no other right except against the actual possessor of the thing and against the thief; but if he can no longer pursue this right, that is his misfortune.

gamma. Finally others think that the price can be retained by the possessor in good faith, because no one has a right to demand it: not the buyer, because outside the case of eviction the seller acquires full ownership in the price of the thing sold; not the owner, because the thing naturally perishes for him. Nor can it be said that the price is the equivalent of the thing to be returned to the owner: for since the seller acquired ownership in the price of the thing sold, this is not the equivalent of the thing sold, or the seller no longer has another's thing equivalently. Finally the seller did not become unjustly richer from another's thing: for he became richer on the occasion of another's thing, and not unjustly, because by selling a thing which he thought was his own, he injured no one. Among more recent authors Bucceroni defends this opinion, and Genicot accedes to it.¹

c. If he donated to another a purchased thing belonging to another, he is bound to nothing, even if otherwise he would have donated his own thing, because he has become richer in no thing.

d. If he sold to another a purchased thing belonging to another without profit, he is bound to nothing, because he did not become richer.

e. If he sold to another a purchased thing belonging to another with profit, he can retain the price of the thing and the profit received from its sale: for the price of the thing does not pertain to the owner, and the profit is from the occasion of another's thing or from the industry of the seller, unless the thing has grown in itself; in which case the profit belongs to the owner.

But if after the destruction of the thing its owner is detected, who claims the thing for himself, since the thing perishes for the owner, he has no other right except that of receiving from the thief the price of the thing.

¹ Bucceroni, Institutiones th. m. I, n. 1341.

440. If the thing is found with another, again diverse hypotheses must be distinguished.

a. If he donated to another a thing belonging to another, received gratuitously, when otherwise he was going to donate nothing, he is bound to nothing, because he has not become richer; but if in place of that thing he would have donated his own, he is bound to restore the price of this, because by this he has become richer.

b. If he sold to another a thing belonging to another, received gratuitously, one must distinguish: if the owner appears and vindicates his own thing to himself (in the case of eviction), or if the buyer spontaneously restores the thing, he is bound to return the price to the buyer, because in the contract of sale he implicitly obligated himself to this. If the owner does not appear and the buyer cannot recover his own thing (outside the case of eviction), according to the opinion of some, which seems probable, he is bound to nothing (n. 439, 2b).

c. If he donated to another a purchased thing belonging to another, he is bound to nothing, even if otherwise he would have donated his own thing: for he has become richer in nothing.

d. If he sold to another a purchased thing belonging to another, one must distinguish: if the owner appears and vindicates the thing to himself (in the case of eviction), or if the buyer spontaneously restores it, the seller in good faith must return the price to the buyer, because the contract of sale always implicitly includes this condition; yet he himself has recourse to his seller from whom he had bought the thing belonging to another. But if the owner does not appear (outside the case of eviction) and the buyer does not spontaneously restore it, the seller in good faith is bound to nothing: for he no longer has the thing, and what he himself received by selling, he spent by buying.

There are indeed some who oblige the seller in good faith to return the price either to the owner or to the buyer, because the seller has no title of retaining the price, since the sale of another's thing is invalid. But by a sale of another's thing made in good faith the seller acquires ownership of the price, except in the case of eviction, in which he is bound to return the price to the buyer.¹

e. If he sold to another a purchased thing belonging to another for a dearer price: alpha. he is bound to return the excess of the price to the owner if he received it because the thing grew in itself, for example, a young animal grew up; beta. he can retain the excess of the price for himself, both if he received it from special industry and if he received it by the simple sale of the thing, because it is the fruit of industry received on the occasion of another's thing.

As to the obligation of warning the owner of the thing, which a possessor in good faith has when he has handed over another's thing to another, so that the owner may be able to recover his own thing, one must distinguish: a. If he donated to another a thing belonging to another, whether received gratuitously or bought, from charity he must warn either the possessor of another's thing that he restore it, or the owner of the thing that he recover it, provided, however, that he can warn without grave inconvenience. b. But if he sold to another a purchased thing belonging to another, he is not bound to warn the buyer that the thing belongs to another, nor the owner where his thing is, if he himself cannot recover the price from the thief from whom he bought the thing: for he is not bound, with his own great detriment, to take care that the owner receive his own thing.

¹ Cf. Bucceroni, Institutiones th. m. I, n. 1339.

441. Obligations by reason of the fruits. He is bound to restore natural, civil, and mixed fruits insofar as they are fruits of the thing, even if the owner would not have received those fruits, because the thing bears fruit for the owner; but he is not bound to restore:

1. fruits of industry, because they are not fruits of the thing, but of him by whose labor they were acquired;

2. nor fruits which he did not receive from another's thing, which nevertheless the owner would have received if the thing had remained in his power, because he neither became richer from it nor unjustly inflicted damage on the owner;

3. nor fruits of the thing which he has made his own by prescription.

a. Therefore he who leased another's beast of burden to another for a price must return this price to the owner, even if the owner himself would never have leased the beast of burden: for civil fruits are fruits of the thing. But he who, by trading, acquired riches for himself from another's money is bound to restore none of these to the owner of the money. Likewise he who sold another's wheat for a dearer price satisfies by restoring similar wheat.

b. The fruits of the last three years, which still exist and which have been consumed insofar as the possessor has become richer from them, must be restored by natural law; but the other fruits of prior years have already been prescribed.¹

alpha. Modern laws generally grant to the possessor in good faith all fruits already received.² If by this disposition of law the legislator intends only to deny to the owner of the thing a civil action in recovering the fruits, it is clear that the possessor is bound in conscience to return the fruits to the owner of the thing. But if the legislator intends to transfer ownership itself in the fruits received to the possessor in good faith, authors now commonly teach as at least probable the opinion that the possessor in good faith can licitly retain the fruits for himself: for the disposition of the law is founded in the common good, namely that by it innumerable difficulties and suits may be forestalled.

beta. What is here established from modern laws about fruits still formally existing holds a fortiori concerning fruits virtually, or only in the equivalent, existing, namely from whose use and consumption the possessor has become richer. Indeed, already from the old laws several theologians denied the obligation of restoring fruits existing only equivalently.³

¹ On the prescription of fruits these things must be noted: a. fruits, as movable things, are prescribed, for example, by a three-year period. Hence if the fruitful thing itself is movable, such as animals, the fruits and the thing which produced them are prescribed at the same time. But if the fruitful thing is immovable, such as fields and trees, the fruits received from it can be prescribed long before the fruitful thing itself is prescribed. b. If the fruitful thing itself has been prescribed, by that very fact the fruits too, not only pending but also received, have been prescribed, even if the time which would be required for prescribing the fruits, if they themselves had to be prescribed independently of the fruitful thing, has not yet elapsed. Thus he who prescribes a field has also prescribed with it the fruits of the last three years.

² Thus also G.A. Section 330; not likewise G.G. 988.

³ Cf. Holzmann, Theologia moralis, t. 4, n. 367 ss.

442. Obligations by reason of expenses. He can deduct necessary and useful expenses: otherwise the owner would receive more than is his own; but for voluptuary expenses he can reclaim nothing, unless they increase the common value of the thing; yet he can remove the improvements if this can be done without detriment to the thing.

1. Necessary expenses are called those without which the thing would perish or would bear no fruits or worse fruits; expenses of this sort are those which are made, for example, in repairing a house, in clearing or fertilizing a field. Useful expenses are those which are made so that the thing becomes more apt for common uses, or bears more fruits, as planting new trees. Voluptuary expenses are those which are made for adornment and pleasure and do not increase the thing or its fruits, such as expenses for paintings, statues, gardens, etc.

2. Under the name of expenses also comes the valuation of the labor and industry of the possessor himself: for he is not obligated to labor gratuitously for the advantage of the owner.