Section — Prümmer, Manuale Theologiae Moralis
2. On The Possessor In Bad Faith
Notion. A possessor in bad faith is one who culpably received or retains a thing which he knows to be another's. Therefore he commits formal injustice and consequently must be treated much more gravely than a possessor in good faith. For he is held to restitution not only on account of another's thing received (as is the possessor in good faith), but also on account of the unjust reception.
216. Principle. A possessor in bad faith is held to restore insofar as he has damaged; or in other words: The measure of restitution is the quantity of damage inflicted.
The reason is evident. For restitution ought to repair the strict equality injured. But this equality is not reestablished unless the whole damage unjustly inflicted has been compensated.
217. The obligations of a possessor in bad faith can be considered with respect: a) to the thing itself received; b) to its fruits; c) to cessant gain and emergent damage; d) to expenses.
a) Obligations by reason of the thing received. The possessor in bad faith is held to restore the thing itself if it still exists, or to give an equivalent price if the thing has perished. - The reason is that a possessor in bad faith is equated with a thief, and therefore is held to restore the whole damage caused (and foreseen). But this restitution demands that first of all the thing itself still existing be restored. But if this is now impossible, an equivalent price ought to be handed over to the legitimate owner. If the thing taken away has perished, whether with or without the fault of the unjust possessor, nevertheless he is held to restore an equivalent price, even if he has in no way been made richer from the thing. For he is held to render the injured owner unharmed.
There is probably one exception: if the thing would have perished in the same manner and at the same time with the owner; because then the thief inflicted no real damage upon the legitimate owner. If, however, he received fruits from the thing, he is held to compensate them. E.g., a thief took away a sick ox which died after a month. It would have died in the same manner and at the same time even if it had remained with the owner. The thief indeed is held to restore the fruits perhaps received during the month, but not the price of the ox. Or a thief took away precious garments. On the following night the house of the thief and the house of the proprietor were together totally destroyed by a single fire. According to natural law the thief is held to no restitution, because he caused no real damage to the legitimate owner.61 But if the thing did not perish at the same time morally, the thief ought to restore it. Several civil laws,62 however, establish that a thief is never exempted from restitution, in whatever manner at last the thing perished or was lost. These statutes do not seem to be unjust and therefore are valid in conscience at least after the sentence of a judge; but they do not seem to bind the heirs of the thief, because they were enacted rather as a personal punishment than for the reparation of damage caused.
He who saved another's thing from most certain and most evident destruction and consumed it in the very place of danger is held to nothing; for a thing not freed from danger and certain to perish in that very place is of no value to the owner. But if he consumed the thing after transferring it from that destruction to a safe place, then he ought to restore the price of the thing, compensation for the labor necessary to save the thing nevertheless being deducted.
Wherefore, e.g., he who in a burning house drinks a bottle of wine which otherwise would perish is held to nothing; but if he first carried that bottle to a safe place, he can indeed demand compensation for the labor undertaken, but he now has no right in the wine, because he saved the thing not for himself but for the legitimate owner. - There are, however, authors who exempt from restitution in this case.63
If during the time in which restitution obliges the value of the thing varies, generally the highest value must be restored, because the thing fructifies for the legitimate owner.64 Hence if the thing has been made better with the possessor in bad faith, it must be restored to the owner with the increase, the price of labor and industry nevertheless being deducted; e.g., he who took away a calf by theft, which afterward became a cow, ought to restore the cow or its price, the emoluments received being computed, but the expenses made being deducted. But if the price of the thing first increased and afterward decreased, nevertheless the thief is held (at least theoretically speaking) to restore the greater price, because the thief ought to have restored at any moment. - In practice, however, ordinarily nothing is to be urged except the restitution of the thing or of its price according to the value which it had at the time of the theft, because those changes of price are often very uncertain, unless nevertheless there is question of natural increase, as in the example of the calf just adduced.65
61 Cf. S. Alph., Theol. mor. l. 3, n. 620; Homo apost. 10, 79; Billuart, De iure et iust. diss. 8, a. 11, § 2.
62 French law a. 1302; Italian law a. 1298; Spanish law a. 457; cf., however, a. 1896.
63 Cf. Tanquerey, Synopsis theol. mor. de iust. n. 507.
64 Thus also Billuart, l.c. § 3. St. Raymond (Summa l. 2, tit. 6, De furtis, § 3) says: "When the valuation of a thing is returned, not only must the time in which the thing was taken by stealth and the time in which it perished be considered, but also the whole intermediate time, and the valuation is made according to that time in which the thing was of the greatest value."
65 Cf. Göpfert, Moraltheol. II, 155.
218. b) Obligations by reason of fruits. By natural law the possessor in bad faith is held to restore: a) both natural and civil fruits of the thing which he himself received (even if perhaps the owner would not have received those fruits), and b) those which the owner would have received, even if he himself did not receive them. E.g., a thief who took away money ought, besides the sum taken away, also to pay interest if he himself had monetary emolument from the money taken away, or if the legitimate owner would have received interest from the money. - But if there are petty thefts and neither the legitimate owner nor the thief would have received or did receive any interest, it suffices to return the sum taken away without added interest.66
The thief is not held to restore industrial fruits, or those mixed fruits in which personal industry produced more than the thing itself. The reason is that those fruits arise principally from the industry of the person and only secondarily from the thing taken away. Hence, e.g., he who took away eggs from which he obtained hens is not held to restore the hens or their price, but only the price of the eggs; he who took away money and staked it in a lottery with the greatest profit is not held to restore except the money taken away with due interest.
66 Cf. Gury, Comp. theol. mor. I, n. 649.
219. c) Obligations by reason of emergent damage and cessant gain. "As often as there is question of restitution of cessant gain or emergent damage, the general rule handed down by all is that restitution ought to be made not integrally, but according to the greater or lesser certainty of such gain or of avoiding such damage, namely, according to how much that uncertain hope could be worth, all those things by which the effect could be impeded being considered." Thus Lugo deservedly.67 But the possessor in bad faith ought to repair only that cessant gain and emergent damage which he foresaw at least confusedly. In this case those things which were said above in n. 93 concerning the unjust damager must be applied.
67 De iust. disp. 18, n. 133.
220. d) Obligation with respect to expenses. The possessor in bad faith can deduct necessary and sometimes also useful expenses which the owner himself would have made to preserve and increase the thing if the thing had not been taken away. Thus the truer and more common opinion, which St. Thomas68 favors when speaking of fruits unjustly received simoniacally. The reason is that then not only is no injury done to the legitimate owner, but his utility is provided for. But it would be too harsh if the possessor in bad faith were held not only to keep the legitimate owner unharmed, but also to bear the necessary and useful expenses. He cannot, however, deduct merely voluptuary expenses perhaps made, unless nevertheless they are separable from the thing without the thing itself being made worse.
68 S. theol. 2, 2, q. 100, a. 6 ad 3.