Article Second. On the Possessor in Bad Faith

443. A possessor in bad faith is said to be one who unjustly retains a thing which he knows belongs to another. His obligations are referred: a. to the thing itself; b. to its fruits; c. to expenses; d. to loss of profit and emergent damage.

Obligations by reason of the thing. In general a possessor in bad faith, besides another's thing or its equivalent price, must restore only as much as is the damage which followed for the owner from the unjust taking away of the thing, or as much as the owner would have if the thing had not been taken away from him. In order that the obligations of a possessor in bad faith may be determined in particular, again diverse hypotheses must be distinguished.

444. 1. If he still possesses another's thing, he must restore it to the owner as soon as possible: for the thing cries out for its owner.

a. Indeed he must restore the very thing taken away, not another in its place: for the owner has a right to his own thing itself, unless the circumstances are such that the owner cannot reasonably be unwilling if the equivalent price of the thing is restored, as if the thief could not return the thing itself without infamy.

b. Probably even a possessor in bad faith can return a purchased thing to the seller (thief) in order to recover the price given, because by returning it nothing is done which appears illicit: for the thing is placed back in the same state in which it was before, and therefore no damage is inflicted on the owner; nor is the possessor bound, with his own grave detriment, to take care that the owner receive his own thing¹ (n. 438, 2).

2. If he no longer possesses the thing, whether it still exists or does not exist, and in this case, whether it perished with fault or without his (the thief's) fault, he is bound to restore its price, even if from this he has not become richer: for he must render the injured owner unharmed; with two cases excepted, however: a. if the thing perished from an internal defect; b. if it perished from a cause (for example, fire) because of which it would also have equally perished with the owner, because in neither case is the theft the efficacious cause of the damage, since the thing would have perished even without the theft.

a. If the possessor in bad faith sold the thing to another and the owner appears and vindicates the thing to himself (in the case of eviction), the distinction which intervenes in this case between a possessor in good faith and one in bad faith must be noted. Namely, if the buyer knew that the thing bought by him belonged to another, the seller or prior possessor in bad faith is not bound to restore to him the price which he had received: for the condition which otherwise is supposed in a sale, namely unless the thing belongs to another and is vindicated by the owner, has no place in this case unless it was expressly otherwise provided, because no injury is done to the buyer, as one knowing the thing to belong to another.²

b. If the thing which perished in whatever way with the possessor in bad faith would have perished with the owner at the same time from another cause, several authors probably teach that the thief is bound to nothing, because the owner suffers no damage from the theft.³ But if the thing would have perished with the owner from the injustice of another, the thief is bound to restore its price, because the owner suffers damage from the theft: for if the thing had not been taken away, others (the thieves) would have contracted the burden of restoring.

¹ Cf. Lugo, disp. 17, n. 37, with whom St. Alphonsus agrees, n. 570.

² C.A. Section 929. C.G. Section 434.

³ Lacroix, l. 3, pr. 2, n. 218; D'Annibale, Summula theologiae moralis^5 (Rome: Desclee, 1908), II, n. 420; St. Alphonsus, l. 3, n. 620.

445. To what is a possessor in bad faith bound, if the thing which he took would otherwise have perished with the owner?

a. He must restore the thing to the owner, whether the possessor rescued it from the danger itself or whether the thing escaped the danger because it had already been taken away: for a thing rescued from danger or saved from danger does not cease to belong to the owner, and therefore cries out for the owner. Yet he can deduct both expenses made for the thing and the price of the labor which he applied in saving the thing.

b. He is not bound to restore the thing to the owner if he consumes it in the very danger, that is, morally at the time and place in which it would have perished with the owner: for a thing not freed from danger, but certainly going to perish, is of no value for the owner.

A thing is considered to be consumed in the very danger even when it is consumed where the danger in which the thing is certainly going to perish is now foreseen as imminent; thus he who foresees that tomorrow the house of Titius is certainly going to perish by fire is not bound to restitution if with others he consumes a cask of wine which could not have been rescued from the fire: for in these circumstances the thing is worth nothing for the owner, and therefore he is not reasonably unwilling concerning its destruction.

446. To what is a possessor in bad faith bound, if the thing had various values during the time of unjust possession?

The change of value which a thing undergoes during the time of unjust possession can be internal or external. It is called internal if the thing becomes better or worse in itself, as if a calf grows up or an ox grows old; it is called external if the thing, while remaining unchanged in itself, receives diverse value from external circumstances, as if wine now has a greater price on account of scarcity, later a lower price on account of abundance.

1. In the case of internal change: a. If the thing has become better with the possessor in bad faith, it must be restored to the owner with the increase: for the thing grows for the owner, though the price of labor and industry is to be deducted. b. If the thing has become worse from a cause because of which it would not have become worse with the owner, it must be restored with the value of the decrease: otherwise the owner would suffer damage. c. If the thing has become worse from a cause because of which the same thing would also have happened with the owner, it suffices that the thing be restored in the state in which it is found.

2. In the case of external change: a. If the owner would have sold the thing at the time of the greater price, or if at that time he had to buy a similar thing for himself at the greater price, the possessor is bound to restore the greater value. b. If the owner would have sold the thing at the time of the lower price, it suffices if he restores the thing itself or its value which it had at the time of the theft.

In practice ordinarily restitution of the thing or of its price according to the value which it had at the time of the theft is not to be urged, because the circumstances mentioned above can either in no way or only with great inconvenience be known with certitude. But if those circumstances were certainly established, the possessor in bad faith would have to be compelled to repair the whole damage.

447. Obligations by reason of fruits. 1. He must restore the fruits of the thing, both natural and civil: a. those which he himself received, even if the owner would not have received them, whether they still exist or no longer exist; for the thing bears fruit for the owner; b. those which the owner would have received, even if he himself received none: for the whole damage which the owner suffered must be repaired.

2. He is not bound to restore fruits of industry: for what he acquires by his own industry is his.

He who exposes money taken away by theft to gambling can retain for himself the profit which he receives from it. A depositary who uses another's money entrusted to his keeping for trading indeed sins, because he is presumed to act against the will of the owner; but the profit which he acquires by trading, the money itself being safe, he makes his own.

Case. Trees which grow from small trees taken away by theft and planted in the land of the thief are to be considered as fruits of industry: for since a plant cannot grow unless it has driven roots in the land, the owner of the land is also owner of those things which grow in the land, even if they have been taken away by theft. Therefore he for whom trees have grown from small trees taken away by theft is not bound to return the trees themselves to the owner of the small trees, but it suffices that he render him unharmed, and indeed, if he would not have uprooted the small trees, by restoring the double price, and if he would have uprooted them, by restoring the simple price. The same must be said of hens which someone acquired from another's eggs placed under his hen; namely he is not bound to restore to the owner anything except the price of the eggs.¹

¹ Cf. Lehmkuhl, Casus consc. I, n. 654.

448. Obligation by reason of emergent damage and loss of profit. He must repair both loss of profit and emergent damage, provided he in some way foresaw it, at least in confused manner: for he must restore to equality, that is, so that the owner has as much as he would have if his thing had not been taken away. Thus if the owner would have sown grain taken away by theft, but because of the theft lacked a harvest, the emergent damage must be repaired to him.

If debts are not paid at their time, the profit which ceases for the creditor from this would in rigor have to be compensated; yet ordinarily late payers are not compelled to compensate these damages, because creditors rarely demand them and therefore are considered to remit them. I say ordinarily, because this cannot be applied to those rich men who delay beyond what is right the payment of those things which they owe to workers or small merchants and thus bring them great inconvenience and damage, which in conscience must certainly be compensated.

Whether interest also, or the interest of money, must be restored. Certainly it must be restored if the owner would have received interest from his money. But if the owner would have kept the money idle with himself, there are some who free him from the burden of restoring the interest received;¹ but undeservedly: for interest received from money is now to be referred to civil fruits arising from the thing itself; wherefore in rigor it must be restored to the owner himself, even if the owner would not have received interest.

¹ Cf. Gury, Compendium theol. mor. I, n. 649.

449. Obligation as to expenses. A possessor in bad faith can deduct both necessary and useful expenses which the owner would have had to make for preserving or increasing his own thing: otherwise the owner, besides the damage inflicted on him, would receive something; but he cannot deduct voluptuary expenses, yet he can retain them for himself if they are separable with the substance of the thing safe.