Article II. Supplements to the Doctrine

261. The violation of possession induces, as most authors hold, an obligation of restitution, even if the invader relies upon a probable right. For it is opposed to the certain right of the possessor. And this is the certain rationale by which it is proved that no private compensation belongs to him whose right is merely probable.

262. The right which is acquired by possession is a conditional right, which falls if the certain owner appears; by this right, meanwhile, there is attributed the faculty of retaining the thing and enjoying it, with the substance of the thing preserved intact if this can be done, and under the burden of restitution if a case of just eviction occurs. Moreover, the very quantity to be restored will be defined in various ways according to the good or bad faith of the possessor, as is handed down in practical moral discipline. Hence it appears at the same time that this right of the possessor benefits the true owner of the uncertain thing, if he afterward appears, while the division of the thing among those who bring forward probable reasons would harm him not a little.

263. A conditional intention of having the thing, by which someone wills to retain for himself a thing probably or certainly belonging to another unless the certain owner appears, seems, on account of the rationale given, to be sufficient for enjoying the privilege of which we now treat. Yet, in order that a possessor of this kind may afterward be immune from every obligation of restitution, he must have made sufficient inquiry concerning the true owner.

An intention of this kind, however, would be useless for acquiring a thing by prescription. Cf. C. de Lugo, disp. 7, nos. 20, 21.

264. The exercise of a presumed right. Some presumption of a true right seems to us, as we were saying, irrelevant to the present thesis. But when it is merely doubtful which of the two, the possessor or the adversary, that is, the plaintiff, is truly the owner, the right of the latter will be morally certain unless a probable reason assists the possessor himself. Cf. St. Alphonsus, bk. 1, no. 36. That probable reason can be the very presumption of right which is per se connected with the fact of possession. Then, therefore, even in our opinion, the presumption will have to be used.

265. The rationale of the common good. Although the common good demands that provision be made for the stability and security of ownerships and that the frequency of lawsuits be met, this rationale, by which the ruler is moved to enact a law, does not prove that any law was enacted by nature itself. Cf. Bouquillon, Fundamental Theology, no. 296.

266. Concerning a possessor in bad faith. By the words and the general rationale of the thesis, we are compelled to attribute this same privilege to a possessor in bad faith. Yet because you have the right to repel another who lacks a certain reason for vindicating the thing as his own, you are not thereby exempted from the burden of restitution which was treated in nos. 261-262. Thus, therefore, we shall define the whole matter: A possessor who in bad faith has occupied a thing whose owner is uncertain is bound to preserve it so long as there is hope of finding the true owner. When that hope has been removed, the thing will have to be expended by him for some pious use. Meanwhile, however, as regards those who do not prove a certain right, he enjoys the possessor's privilege. We judge that this can be conceded without any inconvenience.

This doctrine, insofar as it grants a certain more favorable position even to a possessor in bad faith, is excellently confirmed by these words of C. d'Annibale: “If, while doubting, you entered into possession (all the more if conscious of the injustice) with a practical doubt, the almost most common opinion teaches that the thing must be restored, at least in proportion to the doubt. This is so, moreover, when controversy arises concerning possession itself, that is, when it is not sufficiently apparent which of the two is in possession, the plaintiff or the defendant; but when a question is raised concerning ownership, I fear that this opinion is true.” Thus vol. 2, no. 121. In note 32, however, he adds the following: “Namely, they say, he who entered into possession in good faith, if afterward he began to doubt, could form for himself a certain conscience by that rule of law: ‘In doubt, the condition of the possessor is better’; he who entered into it in bad faith could not do likewise. And why, pray? Namely, says C. de Lugo, disp. 17, no. 86: ‘Because a possessor of doubtful faith truly and strictly does not possess legitimately, but endeavors to possess.’ But 1. This reason—without offense to the expression—is false; for even a thief possesses, and Lugo himself admits it (§ 128, 6); and the laws protect even vicious possession against strangers. (Last law, De A. P. Thus C. d'Annibale; but it is law 1, Digest XLIII, 17.) Nor 2. does it flow from the nature of possession, which, since it consists in fact, not in right, is understood in the same way both when it is entered upon and after it has been entered upon (Donellus, bk. V, VI, 10); and therefore it makes the condition of the possessor better, because he who contends that the thing is his own must prove this clearly (see Prolegomena, § 260). Nor 3. does it flow from the nature of good or bad faith; for this is nothing other than the possessor's estimate, which changes nothing, and neither adds anything to nor takes anything away from anyone's right, which is something objective. Two persons, you and I, picked up a thing found on the road, which you judged to have been abandoned, while I judged it to have been lost; or we bought a field from Seius, which you thought belonged to the seller, while I thought it belonged to Caius. Later Caius brings a claim, but does not prove that the thing had been lost by him or that the field is his. What does your good faith add to your right, or take away from Caius's right? Absolutely nothing. Why, then, can you employ against Caius that rule of law, ‘In doubt, the better, etc.,’ while I cannot? Perhaps in hatred of bad faith? But there is no penalty without a law, nor an extraordinary or positive penalty (such as this one) without a judge (Prolegomena, § 309, 45). Surely, he who contracted marriage while doubtful of an impediment (with the impediment of a bond excepted, because the prior marriage possesses), after the matter has been investigated in vain, licitly asks for the marital debt (St. Alphonsus, bk. 6, no. 906). And he who, thinking himself irregular, accepted an ecclesiastical benefice makes the fruits his own (see Prolegomena, § 404). And the Sacred Penitentiary, January 16, 1837, replied that he who had received a moderate profit from a loan with doubtful or bad faith could be absolved, provided that he was prepared to abide by the mandates of the Church. (In Gury, vol. 1, no. 878.) But how rightly I, perhaps the first of all, have said these things, let the wise see.”