§ I. On the Possessor of Good Faith

A possessor of good faith is he who is invincibly ignorant that the thing possessed by him is another's and prudently judges it to be his own, for example, because he acquired it by a title of dominion translative of itself, say, of inheritance, legacy, donation, or purchase. But it is supposed that he has not yet acquired by prescription the thing possessed; otherwise he would no longer be the holder of another's thing, but of his own.

I say. A possessor of good faith, although as soon as he knows the thing possessed by him to be another's, he is certainly held to restore it to the owner, while it still exists in whole or in part; nevertheless he is held to nothing, if, while good faith lasted, he lost it, consumed it, or in whatever way destroyed it, provided that without any title, or unjustly, he did not thereby become richer. The reason for the first is that the thing cries out to its owner, and the reason for the second, that the thing naturally perishes for its owner.

I said: provided that without any title, or unjustly, he did not thereby become richer: because that in which he would have been made richer would succeed to the thing itself. But it is contrary to natural right that someone become rich with the injury of another, according to rule 48 of law in 6: Someone cannot be enriched with the injury or loss of another.

Question 1. Whether a possessor of good faith is held to restore the diverse fruits which, while good faith lasted, he received?

Resp. Negatively, if the discussion is about industrial fruits, namely those which are chiefly attributed to the possessor's industry, or also about mixed fruits, in that part in which they are industrial. But otherwise it must be said concerning natural fruits, namely those which come forth from the very substance of the thing, without any or with only slight work of man; and concerning civil fruits, which are not fruits properly so called, but are held as such in law, as are annual revenues, the price of leasing a house, etc. The reason for both is that, just as the person of the possessor naturally bears fruit for himself by industry and labor, so the thing, say some piece of land, must bear fruit for the owner through the natural production of grasses. - Cf. St. Alphonsus, n. 610. - Kenrick, tract. 10, part. 2, n. 172. - Ballerini, note (b), p. 547.

Question 2. To what is a possessor of good faith held, if he has sold to another a thing bought from a thief?

Resp. 1st. In the case of eviction, that is, if the owner has vindicated his own thing from the buyer, the seller is held to return the price to the buyer. The reason is that the sale of another's thing either is wholly void, as some think, and then the price is not the seller's but the buyer's; or, as they commonly teach and as is established by Roman Law, it at least lacks firmness and is liable to rescission. Therefore, when eviction intervenes, the contract must be dissolved, and the buyer by the fact itself acquires recourse against the seller: since by accepting the price from the buyer, he implicitly obligated himself to repair the damage, if perhaps eviction would occur. The same thing must be said, for the same reason, in the case of spontaneous restitution made by the buyer. This last point, however, Lugo denies with Lessius, when spontaneous restitution made without the seller being warned inflicts unjust damage on him, by preventing him from being able to recover his own price. - Cf. St. Alphonsus, n. 601. - Salmant., tract. 13, cap. 1, nn. 89 and seq. - Lugo, disp. 17, n. 109. - Lessius, lib. 2, cap. 14, n. 28.

Resp. 2nd. Outside the case of eviction or spontaneous restitution on the part of the buyer, the matter is not without difficulty and is keenly controverted. But, natural right alone being considered, the opinion of those seems probable who hold that the possessor of good faith can then retain the price of the thing sold; for the obligation of restoring to the owner does not urge by reason of unjust damaging, because he acted in good faith, nor by reason of a thing accepted, because this is no longer found with the seller but with the buyer. - Nor should you say that the thing is found with the seller in an equivalent, for recourse is had to an equivalent when the thing has perished, and someone has thereby become richer, but not when the whole thing still exists in its natural state. Besides, that contract was probably valid, insofar as the buyer, having dominion over the price and wishing to transfer it, in fact transferred it to the seller, although the seller did not transfer dominion over the thing; and therefore by many it is called a lame contract. - Cf. St. Alphonsus, nn. 601 and 800. - Lugo, disp. 17, nn. 106 and seq. - Lessius, lib. 2, cap. 14, n. 29. - Salmant., tract. 13, cap. 1, n. 88.

The same solution, as to the twofold response and hypothesis, seems to be given if a possessor of good faith has sold to another an alien thing received gratuitously. - Nor should you say that the possessor in this case becomes richer by another's thing; for if the buyer truly transferred dominion over the money, so that a lame contract took place, the possessor did not become richer unjustly. - Cf. Cardinal Gousset, n. 930.

Question 3. To what is a possessor of good faith held, if he has sold an alien thing, and it has perished in the hands of the buyer?

Resp. It is much controverted among theologians, who nevertheless much more easily concede that the seller can retain the price, if he had the alien thing by an onerous title, than if he acquired it by a gratuitous title. For they say that the seller is held neither to giving anything by reason of the thing, because he no longer has it, nor by reason of damage, since he was not the cause of its destruction. But this same reason ought to have force for the case in which the thing was held by gratuitous title; and if the seller then became richer, nevertheless he did not act unjustly.

Question 4. Whether a possessor of good faith can deduct necessary expenses which he incurred in preserving or increasing the thing?

Resp. Affirmatively; indeed he can also deduct useful expenses, for otherwise the owner would receive more than is his own. But he can claim nothing for expenses merely voluptuary; because it is not equitable that the owner pay expenses which bring him no utility, although he can retain them for himself, if they can be separated while the substance of the thing remains intact. Moreover, among expenses there are not to be reckoned fortuitous cases, nor damages caused per accidens. Thus, for example, if in cultivating another's field your horses perished, the value of the horses cannot be deducted, but only the estimation of the labor done by the horses for the cultivation of the field.

Question 5. Whether he who in good faith bought a stolen thing can return it to the thief in order to recover his own price?

Resp. Negatively, if the owner appears demanding his own thing from him; for then he must return it to him, even with the loss of his own price, because by natural right the owner can occupy his own thing wherever he finds it. Nevertheless an action is given to the buyer against the thief. But if the owner is indeed known, but unaware of the thing, more probably the buyer can send the thing back to the thief, in order that he may recover the money; because the buyer is not held to preserve the thing for the owner with his own damage, indeed he can permit the damage of the owner in order to guard against his own. But if the thief or another seller does not appear or does not wish to return the money, the buyer, once the owner is known, cannot sell the thing to others, nor convert it to his own uses in order to preserve himself unharmed, because he is not the owner of the thing; but he must return it to the owner, notwithstanding the loss of the price. But he preserves recourse against the seller; and if he cannot find him, he himself must undergo the damage. - Cf. St. Alphonsus, n. 569. - Carrière, n. 1042.