§ III. On the Possessor of Doubtful Faith

A possessor of doubtful faith is he who, moved by some probable reason, doubts concerning the certainty of his right to possess, whether that doubt began with the possession itself or in its course.

I say. A possessor of doubtful faith, whether he doubted from the beginning or only in the course of possession, is held seriously to inquire, so that he may lay aside the doubt; for otherwise he exposes himself to the danger of retaining another's thing from culpable negligence. But if, after diligent inquiry has been made, the doubt perseveres, he can retain the whole thing, provided that before the doubt arose he possessed in good faith. The reason is that possession begun with good faith creates of itself a very great presumption concerning the justice of the possession and attributes a certain right to the possessor, which, unless it is overcome by other stronger reasons or presumptions, must prevail both in the internal and in the external forum. - But if the doubt preceded the possession, one must inspect by what title he began to possess. For if in doubt he began to possess by despoiling another of his possession, and the doubt afterward perseveres, he is held to restore the whole thing to the former possessor, when it is not clear that this former possessor began to possess the thing in bad faith; because the reason which recently favored him is now turned back against him. But if he received the thing by another title, for example, of purchase, and after diligent examination the doubt still perseveres whether the one from whom he received it is its owner, he must restore, according to the proportion of the doubt, to the probable owner, or to the poor if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor otherwise does he seem held to restoring the whole, since he doubts whether the thing is another's and not his own. - Cf. St. Alphonsus, n. 625. - Lugo, disp. 17, nn. 80 and 86. - Lacroix, n. 568. - Carrière, nn. 1094 and seq.

This "doctrine as to the obligation of returning a thing begun to be possessed in doubtful faith, when by diligence the doubt is not overcome and laid aside, some probably limit so that it does not have place when someone in doubtful faith accepted the thing by title of purchase or another similar title from a possessor of good faith; for then he neither sins nor is held to restore, if, after diligence has been applied, the doubt still perseveres, because then he succeeds to the right which that possessor of good faith enjoyed, who transferred to him the whole right which he had. But he himself had the right of retaining the entire thing because of possession in good faith; therefore the second also will be able to retain as successor of the first, however much he himself doubts." Lugo, ibid., n. 83.

Indeed, even if someone accepted by title of purchase, etc., from another concerning whom it is doubted whether he is the owner of that thing, Bucceroni judges that he seems to be held to nothing: "for then this man can form his conscience from reflex principles: no one is bad unless he is proved, etc., nor otherwise can a certain obligation be imposed which certainly is not clear." - Bucceroni, n. 1327.

Question 1. To what is he held who accepted some thing in bad faith, thinking the thing to be another's, and afterward doubts whether the thing is his or not?

Resp. He is to be equated with him who began possession with doubtful faith; for the prior estimation is found to be false, and therefore is not to be attended to in the solution of the case. Therefore weigh whether by his possession he has despoiled another or not, and resolve according to the things which were just said.

Question 2. To what is a possessor of doubtful faith held if he has neglected to inquire and the owner appears?

Resp. Generally, after the beginning of the doubt, he is to be treated as a possessor of bad faith; therefore he must be obligated not only to returning the thing to the owner, but also to making good all damages to him. Nevertheless he seems to be excepted who began possession in good faith and then, after doubt had arisen, neglected to inquire, thinking that the owner could be found only with greater difficulty; for this man would be equated with a possessor of good faith. Cf. Lessius, lib. 2, cap. 14, n. 24. - Carrière, n. 1088.

Question 3. Whether a possessor of doubtful faith, who began to possess in good faith, is held to restitution if, after inquiry has been made, he finds that the thing is more probably another's?

Resp. Negatively, because from certain possession there arises a morally certain right. Besides, until another has proved his certain right, the axiom has force: The condition of the possessor is better. - Cf. St. Alphonsus, de conscientia dubia, n. 35.

Question 4. What must be said if the doubt is not concerning the title, but whether someone began possession in good or bad faith?

Resp. Favor must be shown to the possessor, because offenses are not presumed but must be proved. Nevertheless, if someone is found actually in bad faith, and it is doubted whether he began to possess with this bad faith, it must be presumed that he was of bad faith from the beginning, because once bad, he is always presumed to be bad, according to the 8th rule of law in 6. - Cf. Lacroix, n. 567. - Lugo, disp. 18, n. 16.