The Theology of Stolen Goods

A thief who has stolen what belongs to another must, of course, restore the stolen property to its owner. But suppose that he does not do this, and the stolen property finds its way into the hands of others, who, perhaps, know nothing of the theft, what will be the duty of such possessors of another’s property when they come to know the facts of the case? The older theologians discussed this question from the point of view of natural and Roman civil law. Their solutions of the various difficulties to which the question gives rise according to the variety of circumstances were not uniform, and so we may conclude that the dictates of the natural law on the point are not self-evident or clear. Nowadays the question is complicated by the differences in the civil laws of different states and nations. The editors of the new edition of the Moral Theology of St. Alphonsus, recognized this. St. Alphonsus, following Busembaum, says:

“If you yourself bought the [stolen] thing in good faith and sold it without profit, you are bound to restore nothing; only the person with whom the thing is, is bound.”¹ To this the editors append the following note: — Under French, Italian, Austrian, and Spanish law, one who has bought a thing in a public market, or from a merchant selling such things, is not bound to return it to the owner unless the price is refunded to him, which the owner of the thing can then in turn recover from the seller. Under English law, if the thing was bought at fairs (market overt), except in the case of dispossession by a judge’s sentence, ownership is likewise transferred to a buyer in good faith. And since this has been established for the security of commerce, the thing can be retained with a safe conscience. Under German law, one who acquired another’s thing from a person not under suspicion can retain it until it is established that it was stolen or lost.

¹ III., n. 609.

The learned editors recognize, then, that the positive law of the country in such matters is also the rule to be followed in conscience. In his discussion of these questions, Father Lehmkuhl keeps in view the prescriptions of natural law for the most part, which he says,

“They are to be observed there where positive laws have not established otherwise.”

Unless it is evident that the positive civil law on such matters is unjust it is certainly a duty in conscience to observe it. It determines rights of property in doubtful cases which is certainly within its competence, and as it is practically the only rule available, it must be followed if contention, strife, and disturbance of the peace are to be avoided. It is, then, a matter of importance for the student of moral theology to know the rules laid down by English law concerning the ownership of stolen goods when they have passed out of the hands of the thief. I propose in this paper to indicate its chief provisions, and to point out any peculiarities in which it differs from other systems of law which writers on moral theology have had in mind when they composed their treatises on justice. In my treatment of the question I shall principally follow the guidance of Mr. C. L. Attenborough who, in 1906, published a little volume on the Recovery of Stolen Goods.

The thief has no title to the property stolen by him, and he cannot acquire one by lapse of time. The longer he keeps what does not belong to him the greater injury he does the true owner. Moreover, the general rule is that the thief cannot give a valid title to property which he has stolen to anybody else. Nemo dat quod non habet — nobody can give to another what he does not himself own. This rule of common sense and natural justice is confirmed by English law. The Sale of Goods Act, 1893, sec. 21 (1), enacts that: —

Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.

The owner will be precluded from denying the seller’s authority to sell by his conduct when he has held out the seller as the owner of the property, or has consented to his holding himself out as the owner, or as having the right to dispose of the property. In these cases, whether the seller act dishonestly or not, a buyer ignorant of the true facts who relies on the representation made will acquire a valid title to the goods by English law. Besides the foregoing there are certain other exceptions to the rule that the buyer acquires no better title to the goods than the seller had.

And first with regard to money that has been stolen, and which, for the purposes of moral theology, we may treat as goods. When stolen money has been paid away fairly and honestly as currency for a bona fide and valuable consideration the dominion of it passes to the payee, and the former owner cannot recover it. This is due partly to the nature of money as a medium of exchange and partly to the effect of positive law. It is to be noted that the privilege does not attach to coin not used as currency. Thus in a recent case where a thief had stolen a £5 piece, and afterwards exchanged it for five sovereigns, it was held that the person from whom the thief had stolen the £5 piece could recover it, as it had not been paid away in currency. As long as the money remains with the thief or his agent it may be recovered by its owner, and the same is true of stolen money given to another gratuitously by the thief.

What has just been said of money applies also to negotiable instruments which pass by mere delivery. Under the term “ negotiable instruments ” in this connection are comprised bills of exchange, promissory notes, bank notes, cheques to bearer, exchequer bills in blank, foreign bonds with coupons payable to bearer, scrip of foreign loan, Egyptian bonds, debentures of an English company, foreign railway bonds or debentures payable to bearer, and in general any instrument which by the custom of trade is transferable in this country like cash by delivery, and is also capable of being sued upon by the person holding it for the time being.

Another exception to the general rule that the buyer acquires no better title than the seller had is furnished by sale in market overt. According to the Sale of Goods Act, 1893, sec. 22 (1): “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.” Market overt is any open, public, and legally constituted market or fair, and any shop in London is a market overt for the sale of goods in which the shopkeeper deals. The sale must be in good faith as far as the buyer is concerned, for a valuable consideration, and the contract must be made wholly in the market, and not elsewhere. There are special provisions made for the sale of horses to be observed if it is intended that the purchaser should benefit by market overt.

If all the conditions required by law are fulfilled, sale in market overt transfers the property to the buyer even if the seller had stolen the goods. Just as for the common good property passes by prescription according to law, so it passes by sale in market overt according to law.

However, the title of goods bought in market overt is not indefeasible. By sec. 24 (1) of the Sale of Goods Act, 1893: “Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.” So that upon conviction of the offender for larceny the owner of the goods may request that an order for restoring them be made out in his favor by the court which sentenced the felon. This is expressly granted by the Larceny Act, sec. 100: —

If any person guilty of any such felony or misdemeanor as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, or valuable security, or other property whatsoever, shall be indicted for such offense, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and in every case in this section aforesaid the Court before whom any person shall be tried for any such felony or misdemeanor shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner: provided that if it shall appear before any award or order made that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument shall have been bona fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such security; provided also that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent entrusted with the possession of goods or documents of title to goods for any misdemeanor against this Act.

It is to be remarked that the Sale of Goods Act does not require the conviction to be obtained through prosecution by the owner of the property in order that this may revest in him, and it has been specially provided that when conviction has been obtained by the public prosecutor, restitution of stolen property shall be made to the owner provided that he has given the Director of Public Prosecutions all reasonable information and assistance.

It will be noticed that by the Larceny Act restitution may be ordered after conviction not only for the felony of larceny, but for the misdemeanor of obtaining property by false pretenses with intent to defraud. The distinction is of importance in English law. Larceny has been defined as the felonious taking the property of another without his consent and against his will, with intent to convert it to the use of the taker. To constitute larceny the taking of another’s property must be invito domino. On the other hand, when the property of another is obtained by false pretenses, the owner consents to part with the ownership, but he is induced thereto by the fraud of the other party. This constitutes the misdemeanor, and in either case after conviction of the offender the owner who had been robbed or cheated could obtain an order for restitution under the Larceny Act. In this respect, however, the Larceny Act was corrected by the Sale of Goods Act, 1893, sec. 24 (2) :— Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.

With reference, then, to the restitution of stolen goods an order for restitution can be made after conviction for larceny, but not after conviction for a misdemeanor not amounting to larceny. Such an order of restitution, however, which the court is empowered under these circumstances to grant after conviction is only one way of recovering one’s property. If the property was obtained by a fraudulent contract the previous owner may by word of mouth or in writing rescind the contract, and then he recovers his title to the goods. The owner may seize his property wherever he finds it, and in case he was unlawfully deprived of it, he may use such force as is necessary for the purpose of recapture, though he may not always enter upon anothér’s premises in order to take what belongs to him.

The owner may also recover his property together with damages for any injury that he has suffered from its loss by bringing a civil action against the fraudulent person who deprived him of it, or against an innocent purchaser, or against a thief who has robbed him after he has performed his public duty of prosecuting the thief. Sale of stolen goods by private contract does not pass the property in them, and much less does gift, so that through how many hands soever they may have passed in either of these ways they always remain the property of the owner from whom they were stolen, and they must be restored to him when the facts become known. Innocent purchasers of stolen goods who have surrendered them to their true owner may recover damages from those who sold to them whether the sellers knew of the defect in their title to sell or not. This is expressly provided for by the Sale of Goods Act, sec. 12: —

In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is—

(1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass:

(2) An implied warranty that the buyer shall have and enjoy quiet possession of the goods.

The breach of a warranty gives a right to an action for damages, while failure in a condition vitiates the contract. Theologians discuss the question whether an innocent purchaser of stolen property, who afterwards becomes aware of the fact that the goods were stolen, may restore them to the thief in order to recover his purchase money. Whatever some theologians may say in defense of such a proceeding, it could not be adopted among us without exposing the purchaser who had recourse to it to the danger of a criminal prosecution for misprision of felony or compounding a felony. An innocent purchaser who has suffered loss by having to restore stolen goods to their rightful owner may obtain compensation from the Court. By 30 and 31 Vict., c. 35, s. 9, it is provided that:—

Where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offense, which includes the stealing of any property, and it shall appear to the Court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any moneys have been taken from the prisoner on his apprehension, it shall be lawful for the Court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such moneys a sum not exceeding the amount of the proceeds of the said sale be delivered to the said purchaser.

Moreover, by 33 and 34 Vict., c. 23, s. 4, it is lawful for any court by which judgment shall be pronounced or recorded, if it shall think fit, upon the application of any person aggrieved, and immediately after the conviction of any person for felony, to award any sum of money, not exceeding £100, by way of satisfaction or compensation for any loss of property suffered by the applicant through or by means of the said felony, and the amount awarded for such satisfaction or compensation shall be deemed a judgment debt due to the person entitled to receive the same from the person so convicted, and the amount may be ordered by the Court to be paid out of any moneys taken from the prisoner on his apprehension, or payment may be enforced in the same manner as payment of any costs ordered to be paid in any civil action.”²

² Attenborough, p. 184.

The Roman law, like most modern systems, granted a title by prescription for movables as well as immovables. Accordingly, theologians teach that one who has possessed another’s property in good faith for the time required to gain a title of prescription, thereupon becomes its owner, and is no longer bound to restore it to the original owner. In English law movables cannot be claimed by prescription, and so ownership in another’s goods that have been stolen cannot be acquired by prescription among us, unless the goods belong to the Church, and are thus subject to ecclesiastical law. By ecclesiastical law uninterrupted possession in good faith for thirty years gives a title to movables that have been stolen, and so one who in good faith bought a stolen chalice and kept it for thirty years would become its owner by prescription after that length of time.

Greater difficulties than the foregoing arise when we consider the obligations of one who was in possession of another’s property in good faith, but who has parted with it to some third person. For the solution of this question various hypotheses may be made.

One who formerly was in possession of another’s property may have given it to a third person. In that case he must warn the donee that he has discovered that the gift belonged to some one else, and that he had no right to make it over to him; if he does not do this he will sin against justice, inasmuch as he is bound in justice, as far as possible, to prevent loss accruing to his neighbor through any action of his. Moreover, if he obtained any natural fruits from the property while it was in his possession, he must account for them to the owner, for Res fructificat domino. Any fruits obtained by his own industry on occasion of being in possession of another’s property he may keep, they are the fructus industriae. If there are no actual fruits of the property in his hands, or if the property no longer exists, or the possessor cannot be found, the former possessor in good faith will be under no obligations with respect to it or its owner.

A purchaser in good faith and in market overt of another’s property who has sold it again in market overt will have no further obligations towards the original owner or towards the buyer. He had made the property his own, and he sold it as his own. We have seen that if the sale was not in market overt, the sale does not pass the property in the goods, and that the seller is liable to be compelled to refund the purchase money to the buyer who has restored the goods to their owner. Is such a seller also liable to the owner of the property?

We have seen that by the Larceny Act, the Court may, after conviction of the offender, order the restitution of any property that has been stolen or fraudulently acquired. In section 1 of the same Act, “property ” is interpreted as including —

Every description of real and personal property, money, debts, and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and as also including not only such property as shall have been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

At first sight it would seem from this that any one who has sold stolen property may be called upon to account for the proceeds to the owner. It has, however, been held that this interpretation does not apply to proceeds of stolen goods in the hands of innocent purchasers or pledgees, who hold such proceeds for themselves and not as agents to the thief, nor has the court power to order the restitution of such proceeds. Such a purchaser, therefore, will only be bound to refund the purchase money to one who bought stolen goods from him when they have been restored to their owner.

A seller, however, who acquired stolen property by gift, will come under the provisions of section 1 of the Larceny Act, and he may be compelled to account for the proceeds of the sale to the owner of the goods. An innocent holder of stolen goods, says Mr. Attenborough, will either hold them as an agent of the thief, or as a donee from him, or as a purchaser, in which expression we include a pledgee. With regard to the thief’s agent or donee it need only be said that he is in no better position than the thief himself, and that the goods can be recovered from him as readily and in the same way as they can be recovered from the person who stole them. 3

And again : —

Where property has been obtained by fraud and still remains in the hands of the fraudulent person or of his agent, it can be recovered from him as readily as if it had been stolen; and the same applies if the property is in the hands of a donee from the fraudulent person, or of one who has given value for the goods but with knowledge or, what is equivalent, an unsatisfied suspicion that some fraud has been committed with regard to them by the person from whom he received them.⁴

⁴ Ibid., p. 47.

8 Attenborough, p. 16.

In this way then it would seem that English law settles in favor of the owner a question which is a matter of considerable controversy among theologians. The common opinion, indeed, of theologians is on the same side as English law, it obliges the donee of stolen goods to restore the proceeds of their sale to the owner when he cannot come at the goods themselves, but some doubt whether this is so certain as to impose a strict obligation in conscience. It is to be noted that the obligation under English law does not arise until the order for restitution has been made out and put in execution. Until this step is taken, it may be said in favor of the more lenient opinion that when goods have been sold for money in good faith, the money as currency becomes the property of the seller, and especially when it is added to and mixed with one’s previous stock. It then becomes the seller’s property by accession, for the product of, or substitute for, the original thing still follows the nature of the thing itself as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail, which is the case when the subject is turned into money, and mixed and confounded in a general mass of the same description."

5 Attenborough, p. 89.