§ II. On the Possessor of Bad Faith

A possessor of bad faith is he who certainly knows that the thing which he takes or possesses is not his own.

I say. The possessor of bad faith must restore not only the thing itself in individual form or in equivalent, if it no longer exists, and besides all that in which he has been made richer unjustly, but also he is held to compensate every damage inflicted upon the neighbor from the unjust taking. The reason is that the formally unjust damager violates justice no less and is held to restitution no less than the simple holder of another's thing. Nevertheless he can retain all industrial fruits and deduct expenses both necessary and useful; indeed also merely voluptuary expenses, where they can be separated while the substance of the thing remains intact, unless in penalty for the offense he has been condemned to lose the expenses. - Cf. St. Alphonsus, Hom. Ap., nn. 74 and 77.

Question 1. Whether a thief who secretly took a thing otherwise certainly about to perish is held to restitution?

Resp. Affirmatively, with the expenses made together with the price of the labor applied to freeing the thing from danger nevertheless deducted. The reason is that that thing did not cease to belong to the owner, although it had been exposed to the greatest danger. - Several probably except the case if the thief consumes a thing remaining in certain danger, for example, edible or drinkable things already about to perish by fire; because a thing not freed from danger is of no value to the owner. Several extend this to the case in which another's thing is withdrawn from proximate danger and immediately consumed: for example, if you take another's wine now certainly about to be seized by hostile incursion, and drink it with family or friends, because also in such a case the thing is judged to have no or almost no value. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 18, nn. 77, 144 and seq. - Elbel, n. 80.

Question 2. Whether a thief is held to restitution if the stolen thing has perished while with him?

Resp. Affirmatively, whether it has perished by the fault of the thief or of anyone else, or without any fault. The reason is that in that case, since the destruction of the thing must be ascribed to the theft, the thief is held to answer for it. Except the case of natural death from an intrinsic defect, or also of violent death, for example, from fire, but which would have taken place at the same time in the owner's possession, because then the damage could not be ascribed to the theft. - I said at the same time, because if it would have perished before and it is to be ascribed to the theft that it did not perish, it was already crying out to the owner while it remained in the hands of the thief, nor would it have perished if it had already been restored. But if it would afterward have perished in the owner's possession, the same obligation of restitution presses for the thief, who at the instant at which the thing perished in his hands contracted the obligation of restoring. Some require also that the thing perish in the thief's possession by the same danger; but, at least considering natural right alone, the necessity of this condition is not clear. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 18, n. 141. - Vogler, n. 501. - Carrière, n. 1072.

Question 3. To what is a possessor of bad faith held, when the thing has had varying value during the time of detention?

Resp. In such a case one must attend both to the cause of such diversity, namely whether the thing had a different value by intrinsic and natural increase or rather by the variable estimation of men, and to the intention of the owner, namely whether he would have consumed that thing or rather sold it, and indeed at what time he would have sold it; and according to the measure of damage known from these circumstances, the thief must be obligated to restitution. But because almost all the aforesaid circumstances do not become known, for the most part compensation only of the value which the thing had at the time of the theft is to be urged. - Cf. St. Alphonsus, n. 621. - Lugo, disp. 18, n. 132. - Lacroix, lib. 3, part. 2, n. 233. - Carrière, n. 1073.

Question 4. What if another's thing has passed through the hands of several possessors of bad faith from donation or sale?

Resp. As to the thing, it is to be restored by him who still holds it, or changed it into another value, or consumed it, or lost it in any way. But, this one failing, the robber is held. But if neither has satisfied his debt, the rest must pay the price of the thing by equal portions. Finally, in defect of the rest, each one is held for the whole. But as to the fruits and damages of the thing, individuals are held to compensation for the part of the time during which each one held the thing. But if the others do not compensate for their part of the damaging and enjoyment, the reparation of the whole damage is incumbent upon each, yet pro rata for the time elapsed from the day on which successively they were made unjust possessors of another's thing.

Question 5. Whether he who knowingly bought another's thing from a thief can return it to him in order to recover the price?

Resp. It is controverted, almost as in the similar case of the possessor of good faith; but according to St. Alphonsus the affirmative opinion is probable, because although this man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, no otherwise than a possessor of good faith, to rescind the contract. Besides, by returning the thing to the thief, he places it in a condition not worse than that in which he himself found it. - Cf. St. Alphonsus, n. 570.