§ 2. Conclusion

By the law of nature itself, the mere possession of one person is per se to be preferred to the uncertain right of another.

258. I. State of the Question. 1. INTENTION OF THE THESIS. A conclusion is posited at once concerning the origin of the privilege, which we contend to be natural, and concerning its extent, in which we assent to the more benign opinion of Lacroix and St. Alphonsus.

2. THE TERMS ARE EXPLAINED.

By the law of nature itself, that is, even with positive law omitted, yet consequently upon the division of goods which has been introduced.

Mere, therefore without any other aid of some probable reason which would persuade one that the possession is just or has proceeded from a true title.

The possession of one person, strictly taken, such as we have described it.

Per se. By these words we signify that it can happen that something is detracted from that force by positive statute; for example, that the thing is to be divided between the possessor and the one whose property it is “probably” shown to be. Similarly, possession has no force for acquiring things which are positively excepted from those which are in commerce.

Is to be preferred, so that meanwhile—until the right of another is established—the thing is adjudged to the possessor and his detention is sanctioned.

Of another. For where the possession and a probable right belong to the same person, there is no contrariety, but a confirmation of the possessor's privilege.

To the right, which is contrary to the possession itself. That right, however, can be one of perfect ownership, by which all force of possession is destroyed; or of usufruct; or of another right in a thing, by which possession of the thing itself is weakened only in part. That is, the possession of some right is conquered by ownership of that same right, but not of a dissimilar right. Among the rights which are stronger than the possession itself now present, there must also be placed the right which the prior possessor had from possession when he was deprived of his possession by force or fraud. Possession, therefore, does not confer of itself a privilege against him in relation to whom it was vicious.

Uncertain. We call uncertain a right which is not morally established. Yet it must be carefully observed that this right can be established both directly and indirectly. Thus, if a doubt concerning true ownership is narrowed to a few persons, so that it is sufficiently clear that the thing does not pertain to the possessor but to one of the few, though none of them, taken separately, is supported by more than a probable reason, those few have a certain right that either the whole thing be adjudged to one of them or that it be divided among them. This species of fact, therefore, is left aside by us here. Hence the scope of this argument is limited to goods which are called truly uncertain.¹

¹ C. de Lugo, disp. 7, no. 132.

259. II. Proof.

Natural law, as regards things which are in commerce, wills that a person should have inviolably as his own those things which he has materially made his own, provided that another's right is not violated.

But. Through possession a person materially makes the things possessed his own.

Therefore. He can have them inviolably as his own, provided that another's right is not violated.

But no right is violated except that of one who proves his own contrary right to be morally certain.

Therefore. By the law of nature itself, possession is per se to be preferred to another's uncertain right.

The major is established from the thesis concerning the right of property and the primal fact. For it follows from these that the bond by which someone orders a thing to his own good, or by which he has materially made the thing his own, is sanctioned by nature itself, per se and unless another's right stands in the way, as a title of true right.

The first minor is evident from the notion of possession. For it differs from occupation in its object alone, which, in occupation, is definitely a thing belonging to no one.

The other minor is proved by the fact that, as is shown in the disputation concerning probabilism, an uncertain obligation is no obligation. Hence thus: A right is violated only by neglecting the correlative obligation of justice. But. The possessor has no obligation of justice except toward one who demonstrates his own contrary right with moral certainty. For this obligation is demonstrated neither directly—the case itself establishes this—nor indirectly. For by what means would you show that the possessor is bound by an obligation to hand over the thing on account of another's uncertain right? The controversies themselves openly show that an obligation of this kind has not been promulgated.

This is confirmed by the words of the jurist Paul: “Any possessor, by the very fact that he is a possessor, has more right than he who does not possess” [Law 2, Digest, Uti possidetis [As You Possess] (XLIII, 17)]; and by C. de Lugo: “The possessor in good faith has in his favor the title of legitimate possession, which, so long as it is not plainly defeated, always prevails: for the possessor stands as one who is attacked and is merely defending himself, and therefore he must be altogether defeated” (disp. 17, no. 86).

260. III. Difficulties.

1. Possession is a matter of fact, not of right. Therefore. It confers no right.

Reply. It is a matter of fact with respect to the true and certain owner, I concede; with respect to others, I subdistinguish: It is a matter of fact which can be a title of right, I concede; which cannot be such, I deny. For some facts are juridical, others are not.

2. The laws say only: in an equal case the possessor is to be favored. But. The case is not equal where someone whose right is more probable is opposed to the possessor. Therefore.

Reply. I deny the supposition.

For the rule objected is a rule of positive law which holds even where it is disputed among only a few who is the owner of the thing; but we argue from the law of nature which exists per se, and we treat of goods properly uncertain. For the most part, moreover, the case can be called equal, if not in degree, at least in species, since on both sides it is almost always doubtful.

3. Where no probable reason protects the possessor, he cannot acquire for himself a conscience that the thing is his own (thus Schild, in Lacroix, bk. 3, no. 563).

Reply. This conscience is required so that he not restore the thing to the claimant, I deny; it is required so that he himself retain the thing for himself, I pass over.

This is to be determined from the case. Namely, as C. d'Annibale says: “Whenever a controversy concerning ownership is raised against a possessor, it is not asked whether the defendant (he himself) possesses by right, but whether the plaintiff claims by right” (vol. 1, no. 260).

4. Contrary reasons can prevail over the presumption arising from possession. — Presumption yields to truth.

Reply. I deny the supposition that we argue from a presumption of ownership in the possessor. Besides, there is no contrary truth unless the right of another is established.