Point III. On the Possessor in Doubtful Faith

I. The possessor in doubtful faith must investigate the truth, if there is hope of discovering it. Meanwhile he must have care of the thing, and not alienate it without warning the new possessor about the doubt. If he discovers the owner, the thing must be restored to him.

II. He who doubts, and either holds the investigation of the truth as useless, or, after investigation has been made, continues to doubt:

1. If he began to possess in good faith, he can retain the thing, and indeed even if the thing is more probably another's. For the security of possessions and the preventing of lawsuits require that I be able to retain a thing which I began to possess in good faith, until it is established, at least morally, that it is another's (St. Alphonsus, I, nn. 35 and 36; III, 711).

2. He who began to possess in doubtful faith:

a) If he took the thing away from a possessor in good faith, he is bound to restore the whole thing, because, as was said under 1, the prior possessor had the right of retaining the thing.

b) If by a title legitimate in itself, for example purchase, he received the thing while doubting whether another was the owner of the thing:

α) If he received it from a possessor in good faith, he can retain it, because sufficiently probably he succeeds to the whole right of his predecessor.

β) If he received it from a suspect possessor, he can retain part of the thing in proportion to the doubt; but the other part must be restored to the probable owner, if he is known. If besides the actual possessor, that is, the one who received the thing by a title legitimate in itself, there are several probable owners, the thing is to be divided among all probable owners, that is, the possessor and the others. The reason for all this is that all probable owners are of equal condition (St. Alphonsus, III, 625). If the probable owner or owners are unknown, he can retain the whole thing for himself. Many indeed think that, in the latter case, the other part is to be assigned to the poor or to a pious cause. But this is not proved with attention paid to the law of nature; and ecclesiastical law, if it existed, after the Code now cannot be urged (cf. n. 1011).

Note. He who doubts whether a thing has an owner, and cannot lay aside the doubt, can occupy it whole if the owner who perhaps exists is unknown; otherwise let him divide the thing in proportion to the doubt.

3. He who culpably neglected the investigation, so that the owner now cannot be discovered with certainty, is more probably bound to restore something to the probable owner, if there is one, and indeed in proportion to the hope of which he unjustly deprived the owner (St. Alphonsus, I, 36). "I think, however, that restitution is not to be made according to the quantity of the doubt, so that, if the reasons on each side were equal, the thing or its price would have to be restored by half; but less and perhaps much less. The reason is that that hope of the owner could not be valued at half the value of the thing, but at much less, with an equal probability of reason standing on one side, and the certain right of possession on the other, which favored and still favors the possessor. For possession of the thing is indeed valued much more highly than possession of the hope" (St. Alphonsus, I, 37). If there is no probable owner, he can retain the whole for himself, nor is he bound, according to what has just been said, to restore a part to the poor or to a pious cause.