1. On The Possessor In Good Faith

209. There are few treatises of moral theology in which there exists so great a diversity and ambiguity of opinions as in this one concerning the rights and obligations of the possessor in good faith. This indeed seems to have arisen from the fact that the statutes of ancient Roman law concerning this matter are not so clear, nor do they agree with modern civil laws. That we may proceed with due clarity in a matter which is of such great importance and occurs so frequently, the following are proposed in order: the notion of a possessor in good faith; principles; rights and obligations; applications of the principles.

Notion. A possessor in good faith is one who invincibly did not know that the thing possessed by him was another's, but now by chance recognizes his error. Therefore, when the possessor in good faith first received the thing, he had a colored title²⁷ of ownership, e.g., purchase, inheritance, etc. But because of a hidden defect, this title was vicious and therefore did not confer true ownership of the thing, and this is now discovered. Therefore in the possessor in good faith there is no formal injustice, but only material injustice.

²⁷ Cf. above, n. 61.

210. Principle 1. A thing cries out to, fructifies for, and perishes for its owner; nor ought anyone to be enriched through another's injury or loss.

All theologians teach this in agreement with ancient Roman law. Modern laws, however, have introduced certain modifications in this matter, which may also be applied in the forum of conscience, as will be said below.

It is explained: a) A thing cries out to its owner (toward its owner). For a thing legitimately belonging to its owner is so connected with him that, if it has been unjustly separated from him, it always strives to return. Therefore the owner can claim his thing wherever at last he finds it, and the possessor is held to return it, unless he proves that he possesses it by a just title, e.g., by prescription, a just sentence of a judge, etc.

b) A thing fructifies for its owner, because a fruit is something accessory to the thing. But the accessory follows the principal. Therefore, if the thing belongs to the owner, the fruits of the thing must also belong to him. They ought, however, truly to be fruits of the thing, or natural fruits (mixed, civil), but not rather fruits of the person possessing, or industrial fruits. For these belong to the possessor and not to the owner. Modern laws are accustomed to grant to the possessor in good faith all fruits received, even natural and civil ones. Cf. below, n. 213.

c) A thing perishes for its owner. This follows from what has been said; for if the thing belongs to the owner, if it fructifies for the owner, it is equitable that it should also perish for the owner, provided that this loss was caused without injustice. But a possessor in good faith cannot commit injustice properly so called concerning a thing possessed which he invincibly thinks has been committed to his free disposal. Therefore, in whatever manner at last the thing perishes, it perishes for the owner, so that the possessor in good faith has no obligation toward the owner.

d) "Someone ought not to be enriched through another's injury or loss,"²⁸ because otherwise the thing would not fructify for the owner, but for the other possessing it.

²⁸ Rule of Law 48 in the Liber Sextus.

211. Principle 2. In doubts concerning the ownership of a thing and its fruits, favor must be shown to the possessor in good faith.

The reason is threefold. a) The maxim is most true (at least in the matter of justice): "The condition of the possessor is better"; this maxim indeed is notably acknowledged in favor of the possessor in good faith by modern civil laws.

b) The good of the commonwealth demands that possessions be stable and not easily exposed to challenge, and that no one be thrust out of his possession except for a certain and just cause. Therefore favor must be shown to the possessor in good faith.

c) The possessor in good faith received another's thing altogether without any fault. Therefore he merits no harshness or punishment. This indeed would occur if favor were not shown to him in doubts.

212. Principle 3. The statutes of modern civil laws concerning the possessor in good faith are to be observed rather than the statutes of ancient Roman law.

The reason is that ancient Roman law indeed merits the greatest veneration, but nevertheless is subject to change and even to abrogation. Modern civil legislators, however, can freely enact statutes concerning the transfer of private ownership, provided that they do not thereby injure natural law itself. But it is not established that the statutes of modern civil laws openly contradict natural law in this matter. Therefore they bind in conscience, and in a case of conflict with Roman law, subjects are held to follow the modern statutes, Roman law being left aside. Wherefore scarcely any theologian - so far as I know - has publicly taught that the statutes of modern laws concerning the possessor in good faith cannot safely be observed in conscience.²⁹ Certainly these statutes must be rightly understood, and therefore it is especially necessary to perceive whether a true right of ownership is established or only eviction is excluded.

²⁹ Cf. Marc, Instit. mor. I, n. 937; Ferreres-Gury, Compend. theol. mor. I, n. 636.

213. Rights and obligations of the possessor in good faith.

a) The possessor in good faith acquires true ownership of another's thing possessed after legitimate prescription.

b) He acquires all the fruits of another's thing received in good faith, at least if he acquired the thing by an onerous title and if positive law so establishes.

c) He is free from every obligation when another's thing possessed by him perishes and he has not been made richer from another's thing.

d) He can demand compensation for all useful and necessary expenses made for the preservation of the thing.

e) As soon as he certainly recognizes the legitimate owner, he is held to return another's thing existing in his possession. If he received the thing by a gratuitous title, he ought to restore it without any compensation; but if he bought the thing, he can sometimes demand from the owner of the thing the price paid before its restoration, according as the civil laws establish.

The individual points are explained. a) The possessor in good faith has all five conditions required for legitimate prescription,³⁰ provided that he has peacefully possessed the thing for the time determined by law. What that time is, see above, n. 63. Hence if the owner of the thing appears after that time has elapsed, the possessor is no longer held in conscience to hand over the thing possessed. But when the possessor in good faith certainly discovers before that time that the thing is another's, but that its owner is unknown, he can nevertheless retain the thing. For if, according to an opinion safe in practice, the finder can retain another's thing when the owner does not appear, a fortiori this is lawful for the possessor in good faith. E.g., Peter bought a thing in good faith; but after two months he discovers that it had been taken away by theft; the owner of the thing, however, is altogether unknown. Although in this case the title of legitimate prescription is not yet present, nevertheless he can retain the thing and use it until the legitimate owner is known.

b) The possessor in good faith can retain not only industrial fruits, as the older theologians taught according to Roman law, but also all other fruits received during peaceful possession. Thus almost all modern laws, e.g., the French,³¹ Italian,³² Spanish,³³ Austrian,³⁴ Dutch,³⁵ and Swiss,³⁶ contrary to Roman law. German law³⁷ makes a limitation: if the possessor in good faith acquired the thing by a gratuitous title, he is held to return the fruits; otherwise not. Modern laws greatly favor the public good, since innumerable difficulties and complaints which can continually be raised concerning fruits to be restored are thus avoided. Hence theologians commonly teach that these statutes of modern laws bind in conscience, as was already said above, n. 212.

c) The possessor in good faith is free from obligation when another's thing perishes and he has not been made richer from it. For "a thing perishes for its owner." The reason, however, is that no one is held to restore unless he either possesses another's thing or has culpably damaged it. But the possessor in good faith, invincibly thinking the thing to be his own, could freely dispose of it and committed no formal injury, even if the thing perished through his fault. - But what must be said if the possessor consumed another's thing in good faith, e.g., wore out another's garment by frequent use? The older authors responded by distinguishing: If by such use the possessor in good faith was made richer, because, namely, he thereby spared his own things, he is held to pay the price of the thing; otherwise he is held to nothing. Thus Sporer,³⁸ Elbel,³⁹ and, among the moderns, Noldin.⁴⁰

Certain modern civil laws, however, even in this case are accustomed to exempt the possessor from any restitution;⁴¹ nevertheless, in certain cases they do not admit good faith and therefore impose restitution, e.g., when a husband in good faith consumes the goods of his wife, or a tutor the goods of his ward. The confessor also in the tribunal of penance can ordinarily judge according to these civil statutes.

d) As a general principle having few exceptions, it is admitted in modern laws: the possessor in good faith ought to suffer no loss, provided that he is judged to have acted in good faith not only in fact but also juridically. Therefore he can demand not only compensation for all necessary and useful expenses for the preservation of the thing, but also full indemnity when he is held to return another's thing. According to French law,⁴² he can demand from the owner the price paid if he bought the thing in a market, at a public sale, or from a merchant selling things of the same species. Similar things are contained in other laws.⁴³

e) The legitimate owner can always vindicate his thing wherever at last it has been found. Thus natural law. Nevertheless, for the common good civil laws have brought certain modifications to this law. For not only after legitimate prescription does the owner no longer have any right in the thing, but also in certain other cases. Thus, e.g., German law establishes that a possessor in good faith acquires true proprietorship even in the following things taken by theft: money, bearer securities (Inhaberpapiere), and all things bought at public auction;⁴⁴ but in other stolen things the possessor does not acquire ownership. Therefore the statutes of the individual civil laws must be examined; these can ordinarily be observed, indeed ought to be observed, also in the forum of conscience, since they are just determinations of natural law made for the good of the commonwealth. But if the possessor in good faith, according to the law of his country, has not acquired legitimate ownership of another's thing possessed, he is held to return it as quickly as possible, or at least to notify the owner, who can reclaim his thing. This is self-evident, because otherwise he ceases to be a possessor in good faith and becomes one in bad faith; and from delayed restitution he is accustomed to cause unjust damage to the legitimate owner.

³⁰ Cf. above, n. 59 sqq.

³¹ Article 549: "The mere possessor makes the fruits his own only in the case in which he possesses in good faith."

³² Article 703: "The possessor in good faith makes the fruits his own, and is not held to restore except those which came to him after the judicial demand."

³³ Article 451: "The possessor in good faith makes his own the fruits received while possession has not been legally interrupted." - Several civil codes of Latin America establish similar things.

³⁴ § 330: "All fruits arising from the thing belong to the honest possessor as soon as they have been separated from the thing."

³⁵ Article 604. In four points Dutch law clearly determines the rights of the possessor in good faith. The third point establishes: "That he (the possessor in good faith) enjoys, until judicial recovery, the fruits which the thing yields."

³⁶ Article 938: "Whoever possesses a thing in good faith does not thereby become liable to compensate the person entitled by using and enjoying it according to his presumed right. What perishes or suffers damage in this connection he need not compensate."

³⁷ § 988; cf. also § 2020.

³⁸ De iust. tr. 4, c. 2, n. 113.

³⁹ De restit. n. 49.

⁴⁰ De praeceptis n. 439.

⁴¹ Cf. Swiss Civil Code a. 938.

⁴² Article 2280.

⁴³ Cf. Austrian Civil Code § 367 sqq.; Commercial Code §§ 306-308; and Swiss Civil Code a. 934.

⁴⁴ Civil Code § 935. The Swiss Civil Code, aa. 934-935, has similar things.

214. You will ask: Can he who bought a stolen thing in good faith return it to the thief in order to recover his price?

I respond: 1. If the owner appears and demands his thing, the possessor in good faith ought to hand over the thing, unless otherwise established by modern laws. 2. If the owner is indeed known, but is unaware of the thing, the possessor in good faith cannot sell the thing to others in order to recover his price, nor consume it by his own use, because then he uses another's thing in an illicit manner. - But can he hand it over to the thief (with the damage of the legitimate owner foreseen) if he cannot otherwise recover his price?

Theologians depart into two opposed opinions. Cajetan,⁴⁵ Concina,⁴⁶ Dominic Soto,⁴⁷ Billuart,⁴⁸ and several others cited by Billuart and by St. Alphonsus,⁴⁹ relying upon the principle, "A thing cries out to its owner," teach that the possessor is held to return the thing to the legitimate owner, even if he must thus lose his price. Other theologians, St. Antoninus,⁵⁰ Báñez,⁵¹ Lugo, Lessius, Holzmann, and many others cited by St. Alphonsus,⁵² assert that the possessor can return the thing to the thief if no other way is available for recovering his price; because this return is nothing other than the rescission of a contract invalid of itself. But this rescission from a reasonable cause is lawful, even if damage to the owner arises therefrom. St. Alphonsus favors this opinion; indeed he teaches that the same is probably lawful even for the possessor in bad faith. Moreover, in practice it rarely occurs that another way of recovering the price is lacking besides returning the thing to the thief.

⁴⁵ Comm. in S. theol. 2, 2, q. 62, a. 6.

⁴⁶ De iure et iust. diss. 2, c. 7, n. 11.

⁴⁷ De iure et iust. l. 4, q. 7, a. 2.

⁴⁸ De iure et iust. diss. 8, a. 10.

⁴⁹ Theol. mor. l. 3, n. 569.

⁵⁰ S. theol. P. 2, tit. 1, c. 12, § 16.

⁵¹ Comm. in S. theol. 2, 2, q. 62, a. 6, dub. 1, concl. 2 and 4.

⁵² L.c.

215. Applications. Almost all occurring cases can be reduced to four classes; namely, the possessor in good faith: 1. both received and handed over another's thing by a gratuitous title; 2. received it by a gratuitous title, but handed it over by an onerous title; 3. both received and handed it over by an onerous title; 4. received it by an onerous title and handed it over by a gratuitous title.

1. He who in good faith received another's thing as a gift or by another gratuitous title and handed it over gratuitously to another is held to nothing. Thus all laws. The reason is that he committed no injury and had no emolument from the substance of the thing. He is also held to nothing on account of fruits of the thing perhaps received, because according to modern laws the possessor in good faith is almost never held to restore fruits received in good faith.⁵³

2. He who in good faith received another's thing as a gift or by another gratuitous title and afterward sold it or handed it over by another onerous title to another possessor is held to return to the buyer the price received, whether the owner has evicted his thing⁵⁴ or the thing has perished with the buyer. The reason is that here there ought to be applied: a) Rule of Law 48 in the Liber Sextus: "Someone ought not to be enriched through another's injury or loss,"⁵⁵ and b) the principle: A thing perishes for its owner. Thus the common opinion teaches if eviction has occurred; but outside the case of eviction certain theologians, such as Aertnys⁵⁶ and Gury,⁵⁷ teach that restitution of the price received must be made to the owner, since he has been unjustly despoiled of his thing. Other theologians, such as Noldin⁵⁸ and Bucceroni,⁵⁹ think that the price can be retained by the possessor in good faith, because neither the owner nor the buyer has the right of demanding it. In practice the civil laws of each region must be observed.

3. He who in good faith bought another's thing or received it by another onerous title and afterward sold it (although a little more dearly) is of himself held to nothing. For he no longer possesses another's thing, nor did he have notable profit from it. The same is valid a fortiori if someone in good faith received another's thing by an onerous title and afterward handed it over by a gratuitous title. - But if the owner has evicted his thing, then sometimes he himself is held to compensate the price paid;⁶⁰ but sometimes the last buyer can reclaim the price paid from the prior seller, and so on.

4. Modern civil and commercial laws in certain cases do not admit good faith, or at least do not concern themselves with good or bad faith, but simply determine the restitution or retention of the thing and its fruits. It cannot be said a priori that these statutes are unjust. Therefore, when the confessor must judge in the tribunal of penance concerning some graver case of a possessor in good faith, let him first consult a jurist, and let him not easily impose upon the possessor in good faith an obligation of restoring, or grant freedom from restitution, contrary to the statutes of the civil law in force.

⁵³ Cf., however, the exception above in German law.

⁵⁴ Eviction = dispossession; vindication = an action for ownership.

⁵⁵ Thus also expressly German law, § 816.

⁵⁶ Theol. mor. l. 3, n. 309.

⁵⁷ Comp. theol. mor. I, n. 639.

⁵⁸ De praeceptis n. 439 sqq.

⁵⁹ Inst. theol. mor. I, n. 1341.

⁶⁰ Cf. French law, a. 2280.