Point II. On the Possessor in Bad Faith

The possessor in bad faith is bound:

I. As regards the thing. If it exists, the thing must be returned as soon as possible. If it does not exist, generally its price or equivalent must be restored. Cf. the questions treated in n. 990.

II. As regards fruits. He is bound to restore the natural, civil, and mixed fruits which he received, even if the owner would not have received them; for a thing fructifies for the owner. Nevertheless, he can retain the price of the labor furnished for obtaining the fruits. For the rest, it does not matter that perhaps the fruits have been consumed, because by the very fact that they existed they were the owner's. Merely industrial fruits do not have to be restored (St. Alphonsus, III, 618).

III. As regards damages to be repaired. He is bound to restore emergent damage and ceasing profit, provided they were foreseen at least confusedly, for example fruits or interest which the owner would have received. But emergent damage and ceasing profit must be restored according to the estimation of the hope of avoiding damage or of acquiring profit (St. Alphonsus, loc. cit.). If emergent damage and ceasing profit doubtfully took place, he is not bound to restore them. Nor is he bound, with attention paid to the law of nature, to restore fruits which neither he himself received nor the owner would have received. But if civil law prescribes their restitution, it can be held as penal, and therefore should not be urged before the sentence of a judge.

IV. As regards expenses made, he can deduct:

1. With attention paid to the law of nature, necessary and useful expenses; voluptuary expenses for the same reason by which this is permitted to the possessor in good faith (n. 985); finally expenses made for producing fruits (St. Alphonsus, Homo Apostolicus, tr. 10, n. 74).

2. As regards civil law, let the Code of the country be consulted. But if the law of the country prohibits one who has occupied another's thing by force from deducting any expenses, these provisions, insofar as they restrict the law of nature, can be held as penal, so that they cannot be urged before the sentence of a judge.

Question 1. Whether the possessor in bad faith must restore the price of the thing or of the fruits which perished while with him, but would also have perished while with the owner.

Response 1. Negatively: 1° if the thing or fruits perished from an intrinsic defect, as a horse from old age; 2° if they perished by the same danger by which they would have perished while with the owner, as if the house of the thief, in which the thing is, and the house of the owner, in which the thing was, are burned by the same common fire. The reason is that the possessor in bad faith did not expose the thing to the danger, and therefore did not influence the destruction of the thing, or the damage that would follow; hence the obligation of repairing the damage is lacking.

Response 2. Affirmatively, if the thing or fruits perished by a different danger, as if the houses of the thief and of the owner are burned by different fires, or one is burned by fire, the other is overthrown by an earthquake. The reason is that the possessor exposed the thing to this danger, and thus influenced its destruction or the damage, as it occurred in the concrete; hence the obligation of repairing the damage is present. Nor does it seem to matter whether the different dangers took place at the same or at a different time, because it suffices that he influenced the destruction or the damage as it occurred in the concrete (St. Alphonsus, III, 620; Homo Apostolicus, tr. 10, n. 79).

Objection. It does not matter to the owner whether the thing perished by this or by that danger.

Response. I concede; but this does not prevent the possessor from having influenced the damage as it took place in the concrete.

As to what civil law establishes, see the Code of the country.

Question 2. To what extent the possessor in bad faith is bound to restore, if the thing possessed had varying intrinsic value or varying price.

Response 1. If the possessor in bad faith still possesses the thing, he is bound to restore it whole, even if it has increased either in intrinsic value, as if a lamb has grown into a sheep, or, the thing not having been changed, in price alone. If the thing has decreased in intrinsic value, as if a horse has become old, both the thing must be returned and compensation must be added, if by the possessor's fault the thing has decreased more in value than it would have decreased while with the owner. If the thing, unchanged in itself, has decreased in price, it suffices to return the thing, unless, had the thing not been taken away or had it been restored at the time of increased price, the greater price would have benefited the owner, for instance because he would have sold it at the time of increased price. According to others, it does not suffice to return the thing, but restitution must be made according to the greater value, because when the price increased for the owner's benefit, and at that time the thief culpably did not restore, from that unjust detention he contracted the obligation of restoring it according to the greater price. But that contracted obligation is diminished by the very fact that the price of the thing is diminished; for the thing decreases in price for the owner.

Response 2. If the possessor in bad faith no longer possesses the thing, he is bound to restore thus:

1. He is bound according to the greater value: 1° if the thing profited the possessor according to the greater value, for instance if he sold it at the time of increased price; 2° if, had the thing not been taken away or had it been restored, the greater value would have benefited the owner, for instance because the owner would have sold the thing at the time of increased price; in doubt whether it would have benefited the owner, as regards the excess let only so much be restored as the probability of the excess that would have come to the owner is worth.

2. If the greater value neither profited the possessor nor would have profited the owner, as if the possessor sold the thing at the time of the price again diminished, and the owner, had the thing not been taken away or had it been restored, would not have sold it at the time of increased price, it suffices to restore according to the lesser value, by granting to the owner either a thing of the same species and value, or its price.

Objection. In the case just posited, the possessor in bad faith is bound to restitution according to the greater price, because by the very fact that he did not restore the thing at the time of increased price, he contracted the obligation of restoring it according to the greater price.

Response. That contracted obligation, as we have already noted, has been diminished by the very fact that the thing began to be worth less; for the thing decreases in price for the owner.

Question 3. To what extent restitution must be made if another's thing has passed through the hands of several possessors in bad faith.

Response 1. As regards the thing, it must be restored by the last possessor in bad faith who holds it in itself or in equivalent, or who unjustly destroyed or consumed it. If the last possessor in bad faith neither holds the thing in itself or in equivalent, nor unjustly destroyed or consumed it, according to some he, according to others the thief, is bound in the first place as regards the value of the thing. But if neither satisfies, the others must pay the price of the thing in equal parts. If all the others are lacking, each is bound for the whole, because he is a cause of the damage.

Response 2. As regards the fruits and damages of the thing, each is bound to compensation for the part of the time during which each detained the thing. If the others do not restore, the reparation of the whole damage falls upon each, in proportion to the time elapsed from the day on which they became unjust possessors.¹

Note. Let the confessor not too anxiously compute with the penitent the sometimes very uncertain price, both of the thing itself and of its fruits, and the expenses to be deducted, either perhaps laid out or perhaps spent for labor and industry; nor let him scrupulously estimate damage of whatever kind perhaps inflicted on the owner. But let him settle the matter... according to what is equitable and good with the unjust possessor or damager.² Prudence requires that the confessor also attend to the good faith and the mind of the penitent, more or less prepared for due restitution. Let him also observe that it can happen that an unjust possessor who was in bad faith by reason of the thing nevertheless received the fruits in good faith, and either consumed or destroyed them.

¹ Cf. Aertnys-Damen, n. 758.

² Cf. Aertnys-Damen, loc. cit.