What the bad-faith possessor must restore

When one has wrongfully had possession of another’s property, well knowing that he had no right to keep it, on coming to a better frame of mind he is bound in the first place to restore the property itself to its rightful owner. Moreover, if the owner has suffered any special loss through being deprived of what belongs to him, the thief must make this good, inasmuch as he was the unjust cause of it. Furthermore, all natural or civil fruits of the property he must restore to the owner, for res fructificat domino; and if they have been consumed, their value must be given to him or else he will not have his own. Any fruits which are due to the industry of the thief, and all necessary and useful expenses which he incurred in respect of the property, he may in conscience deduct from what must be restored to the owner, for justice only prescribes that each one should have his own, not more than his own.

If another’s property is saved from fire, or from certain destruction in any other way, it still belongs to the former owner, for res clamat domino. At most, he who saved it has a claim to reasonable compensation for his trouble. If stolen goods perish in the hands of the thief, he must make restitution for them to the owner, unless they would have perished in the owner’s hands at the same time and in the same way. For if they would have perished at the same time and in the same way, the thief is not the cause of their destruction: otherwise he is, and he must bear the consequences.

If stolen property had different values after the theft, the owner’s losses must always be made good; and so if he intended to sell it when at its highest value, that value must be restored to him. Usually, however, if the property itself cannot be restored, it will be sufficient to restore the value which it had at the time of the theft. This is the teaching of many theologians and it seems to be in agreement with the provisions of English law: ‘‘ The measure of damages in an action for conversion is the actual loss sustained by the wrongful act. In general, this would be the market value of the goods at the time of conversion. ... And the jury on the trial of an action for conversion may also give damages in the nature of interest over and above the value of the goods converted.””

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.

645. Principles. - I. A possessor of bad faith must restore the thing itself in individual, if it exists, or in equivalent, if it does not exist, and besides everything in which he has been made richer ¹, as was said concerning the possessor of good faith.

¹ Understand the natural fruits of the thing; for if he has been made richer through industrial fruits, he can licitly retain these for himself, as the Author warns below.

II. He is held besides to compensate every damage brought upon the neighbor from the unjust taking, even if he was not made richer. The reason is that through the taking formally unjust and of itself efficacious of damage, he violated the right of the neighbor. But commutative justice requires that the violated right be integrally repaired. Therefore...

III. Yet he can retain all industrial fruits, and deduct expenses both necessary and useful; indeed even merely voluptuary ones, where they can be separated with the substance of the thing intact, unless as a penalty of the delict he has been condemned to lose the expenses. - St. Lig., Hom. ap., n. 74, 77.

646. Questions. - Q. 1. Whether a thief is held to restitution who stole a thing otherwise certainly going to perish?

Resp. Affirmatively, nevertheless with the expenses made, together with the price of the labor applied to free the thing from danger, deducted. The reason is that that thing did not cease to belong to the owner, although it had been exposed to the greatest danger.

Several probably except the case in which the thief consumes the thing while it remains in certain danger, for example, food or drink now about to perish in a fire; because a thing not freed from danger is of no value for the owner. - Lugo, D. 18, n. 77, 144 and following. - St. Lig., n. 620. - Elbel, n. 80.

Several extend this to the case in which another's thing is withdrawn from proximate danger and is immediately consumed; for example, if you take another's wine, which just now was certainly going to be seized in an enemy incursion, and drink it with your family or friends. - Lugo, Elbel, ibid.

647. • Q. 2. Whether a thief is held to restitution if the stolen thing has perished with him?

Resp. 1. Absolutely affirmatively, if it perished through the fault of the thief or of any other person whatever, because the thief was the efficacious cause of the damage, whether he himself or another by culpable negligence lost or consumed, donated, or destroyed the thing. - Thus all.

Resp. 2. Generally affirmatively, if likewise the thing perished with the thief, even without any fault of his. The reason is that the thief, by removing the thing, took all its danger upon himself. - St. Lig., n. 620.

Resp. 3. Nevertheless negatively, if the thing would have perished with the owner at the same time and by the same chance, or from its intrinsic defect, because then absolutely no damage is inflicted on the owner. More probably this has force even if the thing certainly would have perished at the same time and in the same common danger in which it perished with the thief, for example, in the same fire, or in the same public calamity. The reason is that then the theft was not the cause of the damage, but the thing would equally and in the same way and time have perished. - Thus commonly. - St. Lig., n. 620; Hom. apost. on the seventh precept, n. 79. - Lugo, Disp. 18, n. 141. - Vogler, n. 501, against Concina, etc. I said 1. if the thing would have perished at the same time with the owner; because if it would have perished earlier, and it must be ascribed to the theft that it did not perish, now it was always crying out for its owner while it was remaining with the thief, nor would it have perished if it had already been restored; therefore the thief is held to restitution. But if it would have perished later with the owner, the same obligation of restitution presses for the thief, who at that instant at which the thing perished with him contracted the obligation of restoring.

I said 2. in the same danger; because where the danger is wholly diverse, it can well be imputed to the thief that it perish, because without his theft the thing would not have been exposed to this danger, although it would have undergone another risk. - St. Lig., n. 620. - Some, however, contradict, because, they say, it is the same whether the thing perishes in this danger or in another, when both risks coexist at the same time.

From Roman and French Civil Law, in whatever manner the thing perished in the hands of a possessor of bad faith, he is held to restitution. Yet he does not seem to have to be obligated to restitution before the sentence of a judge, unless it is established that he is obligated by natural law. - Carrière, n. 1072. - Gousset, n. 933.

648. • Q. 3. To what is a possessor of bad faith held when the thing had various value during the time of detention?

Resp. 1. The things which follow must be held as certain:

1. If the thing was made worse with the thief, it must be restored according to the value which it had at the time when it was taken away. For otherwise the owner would not receive all that was his.

2. If the thing increased with the thief, it must be restored with all increments here and now existing, because the thing always belongs to the owner, and increases for him.

3. If the owner would have sold his thing at the time at which it was taken away from him, and the thief at the same time sold or consumed it, he is held only to restore the value which it had when he stole it.

4. If the thing increased with the thief and afterwards decreased, and it is established that the owner, at the time at which it was of greater price, would have sold or consumed it, the thief is held to return the whole greater price.

5. If the thief consumed a thing not going to be kept by the owner at the time of lesser price, he is not held to restitution of the increase, at least more probably, because he does not become rich from another's thing, nor inflict injury on the owner. - Thus more commonly, against some. - Except if the owner could not have bought at the same price a thing similar to the one consumed. - St. Lig., n. 621.

6. If the thief sold or consumed a thing not going to be kept by the owner at the time of greater price, he is held to return that price to the owner, although the owner would have done something else with the thing, because the thing fructifies for its owner. - Thus commonly. - St. Lig., n. 621.

Resp. 2. But it is controverted whether the thief is held to restore the stolen thing according to the greater value which it at some time had, if the owner would have kept that same thing until the time of lesser price, or if he would have consumed it before its price had increased. It seems more probably to be denied, because the thief is held to restore the greater value neither by reason of the thing accepted, as is plain from what has been said, nor by reason of damage inflicted, because he places the owner back in the same state in which he would have been if the injury had not been committed. - Lugo, D. 18, n. 132. - Lacroix, n. 233. - Carrière, etc.

Yet not a few others affirm, because the thing belonged to the owner with its increase at the time of greater price, and therefore then he was held to return it. Therefore, etc. - St. Lig., n. 621. ². - Billuart. - Antoine.

² ** The VV. oppose to the Author's doctrine as regards the second part of the question (p. 923) those things which St. Alphonsus (Lib. 3, n. 621) has. If the owner, he says, would have consumed the lamb at the time of the lower price, and with the thief the value increased, but afterwards with him decreased to the original value, Concina responds that the thief is held to restore the lower price, since restitution does not oblige except according to the measure of the damage inflicted. But this seems to me wholly improbable, since, when the price of the lamb had increased to five for the benefit of the owner, and at that time the thief culpably did not restore the lamb to him, the damage was not in five, but in ten, and the delay of the thief was indeed the cause of this damage; wherefore he must restore not five, but ten.

But perhaps both sentences can be reconciled, if in both places the hypothesis is supplied, or the limitation which each left to be understood according to the first part of the question. Laymann (Lib. 3, Tr. 2, C. 4, n. 5) proposes this limitation thus: But it must be limited, unless the thing is so situated that, although the unjust possessor had restored the thing in the best state, nevertheless it would not have been sold by the owner, etc., but kept, and similarly would have been made worse; then the unjust possessor satisfies by restoring the thing in the worse state to which, nevertheless without his fault, it came. The reason is that in this case the thief, by the delay of restoring, in reality brought no damage upon the owner, as is clear from the things said above.

Lugo himself clearly proposes this in the place which the Author also alleges (Disp. 18, n. 132). And first he thus proposes the doctrine later handed down by St. Alphonsus: If, while existing with the owner at the time of greater value, it was to be consumed or alienated, the thief is held afterwards to restore to the owner according to that greater value; because at the time of greater value he ought to have returned it to the owner, and from the unjust retention he was the cause that that damage arose for the owner or that profit ceased; and this whether from the fault of the thief, or without it, the value or goodness of that thing decreased. And the Author also hands down this same doctrine in the fourth and sixth Resolution. Lugo then (ibid.) adds the limitation or other hypothesis thus: If that thing decreased in value, which would have decreased in the same way with the owner, by whom it was to be kept up to that time when it was worth less; now regard must be had only to the value of the thing for the time when it was consumed, and when the damage was truly inflicted; because from that unjust consumption or from the past unjust retention or taking, the owner suffered no other damage, as we suppose. Therefore neither by reason of arising damage nor of ceasing profit must anything else be restored above that which the thing was worth when it was consumed.

In practice, since almost all the aforesaid circumstances do not become known, for the most part only compensation of the value which the thing had at the time of the theft is to be urged.

649. • Q. 4. Whether a thief, besides the stolen money, must also restore the interest (les intérêts)?

Resp. Affirmatively, if it is established or presumed that the owner would have received that profit, because this latter, with respect to the possessor of bad faith, must be made wholly unharmed; but otherwise probably in the other hypothesis, because it is not established that the owner has a right to that increase.

Q. 5. Whether those are held to restore who, in order to receive alms, pretend that they are poor, or true poor persons who say that they are upright when they are not?

Resp. to the first: Affirmatively. The reason is that they have no right to alms; for those who dispense them intend to help only true poor persons. Therefore restitution must be made either to the giver, or at least to truly poor persons. More probably it suffices if restitution is made to poor persons. Nevertheless restitution does not seem to have to be urged if it is a matter of very modest alms, such as are given door to door, because those dispensing them are less unwilling as regards these. - Thus commonly. - St. Lig., n. 622.

Resp. to the second: Negatively, generally, because need alone, but not uprightness, is the condition to which the donor attends or is presumed to attend. - Thus commonly.

650. • Q. 6. What if another's thing has passed through the hands of several possessors of bad faith by donation or sale?

Resp. 1. As regards the thing, this is to be restored by him who still holds it or changed it into another value, or consumed it, or lost it in any way. But if he is lacking, the robber is held. But if neither of them has satisfied his debt, the others must pay the price of the thing in equal portions. Finally, in the defect of the others, each one is held for the whole.

Resp. 2. As regards the fruits and damages of the thing, each one is held to compensation for the part of the time during which each detained the thing. But if the remaining persons do not compensate for their part of the damage and fruition, the reparation of the whole damage is incumbent upon each, yet pro rata of the time elapsed from the day on which successively they were made unjust possessors of another's thing ³. - Thus commonly.

³ Namely, each of them is held to repair the damages, not those which followed before he himself became possessor of another's thing, but those which followed afterwards.

Q. 7. Whether he who knowingly bought another's thing from a thief can give it back to him in order to recover the price?

Resp. It is controverted almost as in the similar case of a possessor of good faith, concerning which above, n. 644. More commonly it is denied, because by buying in bad faith he took upon himself the danger of the thing; on the other hand, no one's fraud ought to patronize him. But others affirm as probable, with St. Ligor., n. 570, because although he sinned by buying the thing in bad faith, nevertheless after the purchase he has a right, just as a possessor of good faith does, to rescind the contract; nor, by giving the thing back to the thief, does he place it in a worse condition than that in which he found it, from which moreover he was surely not held in justice to free it.

506. (A) As an unjust possessor of another's thing, he must as soon as morally possible restore to the owner the thing itself, if he has it, or an equivalent thing; otherwise he would be richer from another's thing.

(B) As an unjust damager, he is bound to furnish the owner unharmed, by repairing all damages which at least confusedly he foresaw as going to follow from the unjust retention.

Hence he must compensate a thing consumed, even if he did not become richer from it; and if the thing perished, even by a fortuitous event, he is bound to restore its price, at least generally, namely as often as it would not have perished in the possession of the owner himself. Likewise if the thing became worse, while it would have remained intact with the owner, he must compensate that damage. For in all these cases he truly is the cause why the owner suffered these damages.

507. Corollary. But what if the thing would have perished in the possession of the owner himself? - A distinction must be made: (a) if it would have perished morally at the same time and by the same event as it perished with the thief (e.g., by the same fire or shipwreck, or from an intrinsic defect of the thing), more probably the thief is not bound by natural law to restitution, because he is not the efficacious cause of the damage. The same probably can be said if the thing would have perished at the same time, although not by the same event (e.g., it perished by fire at the thief's place, while it would have perished by water on the same day at the owner's): for the reason is the same.

(b) But if the thing would not have perished morally at the same time, the thief is bound to restitution: for then the thing, for at least some time, was unjustly retained by the thief; e.g., if wine rescued from a fire is drunk, its price must be refunded. - Yet I said at the same moral time, because if it were certainly foreseen that the thing was soon going to perish, there would be no strict obligation of restoring: for a thing soon and certainly going to perish is scarcely of any value.

By civil law, prevailing in France¹ and many other Nations, a possessor in bad faith is bound to restitution, in whatever way the thing perished in his hands. Yet this provision, insofar as it differs from natural law, can be regarded as penal, and therefore does not oblige before, but only after, the sentence of the judge.

¹ Cod. civ., art. 1302, in Supplement., p. 89*.

508. By natural law, and also by civil law prevailing among most Nations, he is bound to restore: (a) all fruits received from another's thing, even if the owner would not have received them, because the thing fructifies for the owner; even consumed fruits, although he has not become richer from them, because he must repair all damages unjustly inflicted; (b) all fruits which the owner would legitimately have received, although the possessor himself did not receive them: e.g., if the owner, as endowed with very great skill, is accustomed to make twenty percent from business, and by theft was impeded from making this gain, the thief is bound to pay this; otherwise he does not compensate the damages unjustly inflicted; (c) fruits received by those to whom the thing passed, if these have not restored; for with them he is bound in solidum to repair all damages following from the unjust occupation of the thing.

Yet Lugo rightly notes here:² "As often as the question concerns restitution of profit ceasing, or of damage arising, the general rule handed down by all is that restitution must be made not in full, but according to the greater or lesser certainty of such profit, or of avoiding such damage, namely as much as that uncertain hope could be worth, with attention to all those things by which the effect could have been impeded."

² Lugo, disp. XVIII, n. 133.

509. (d) But industrial fruits, received not from the thing, but on the occasion of it, pertain to the possessor; hence, if a thief or depositary has carried on business with money taken away or received, he must restore the money and legal increase, or the profit which the owner would have made, but not the increase owed to his own labor.

510. Corollary. If a thing, during the time of unjust detention, had various values, is the unjust possessor bound to restore the highest value? - The principle is that the highest value must be restored: (a) as often as the owner is unjustly deprived of that increase, e.g., because, since he himself is vigilant, he would have sold the thing at the time of the highest price, - or because he was compelled to buy an equivalent thing at a time when it was sold more dearly; (b) as often as the unjust possessor would otherwise become richer, because, e.g., the increase of the thing is owed to him, as if a calf grew: for the thing grows for the owner.

But in practice it is often difficult to determine whether and when the aforesaid conditions are verified; if the matter remains doubtful, only compensation of the value which the thing had at the time of the theft is to be urged.

511. By natural law, a possessor in bad faith, while he restores the thing and the fruits, can deduct the expenses which he made, both necessary and useful, which truly increased the value of the thing; for otherwise the owner would become richer from another's thing. But he cannot deduct merely voluptuary expenses; yet ornaments which, the substance of the thing being preserved, can be removed, he can retain for himself.¹

¹ Thus also from French civil law; cf. Cod. civ., a. 1381; but not from English or American law, according to which the owner is not bound to refund expenses made by a possessor in bad faith.

218. b) Obligations by reason of fruits. By natural law the possessor in bad faith is held to restore: a) both natural and civil fruits of the thing which he himself received (even if perhaps the owner would not have received those fruits), and b) those which the owner would have received, even if he himself did not receive them. E.g., a thief who took away money ought, besides the sum taken away, also to pay interest if he himself had monetary emolument from the money taken away, or if the legitimate owner would have received interest from the money. - But if there are petty thefts and neither the legitimate owner nor the thief would have received or did receive any interest, it suffices to return the sum taken away without added interest.⁶⁶

The thief is not held to restore industrial fruits, or those mixed fruits in which personal industry produced more than the thing itself. The reason is that those fruits arise principally from the industry of the person and only secondarily from the thing taken away. Hence, e.g., he who took away eggs from which he obtained hens is not held to restore the hens or their price, but only the price of the eggs; he who took away money and staked it in a lottery with the greatest profit is not held to restore except the money taken away with due interest.

⁶⁶ Cf. Gury, Comp. theol. mor. I, n. 649.

S. Thom. II-II, q. 62, a. 6.

298. The second title of restitution is another's thing received (bezitting). — By this title the possessor who detains another's thing is bound to restitution, whether in itself, or in an equivalent, insofar as he has been made richer from it, as if he has the price of the thing or its fruits, or insofar as he has spared his own things, as if by consuming another's thing he preserved his own which otherwise he would have consumed. He must restore it from the moment when he knows it to be another's thing, and that the other justly claims his own thing: for if it were not rendered at its time, it would already be an unjust taking. This is established from the axioms: the thing cries out for its owner, and right reason dictates that no one can become rich from another's thing (n. 160).

Before he knows this, that the thing is another's and to be restored, he is a possessor of good faith and inculpable, and is bound to restore by the sole title of the thing received or possession; after he knows this, if he retains the thing, he is culpable and a possessor of bad faith, and now by a twofold title he is bound to restore, namely, of the thing received and of unjust taking (as will be said in the following article); but if he doubts, he is a possessor of doubtful faith.

At present we shall speak of the possessor of good faith, who, namely, while detaining another's thing, inculpably thinks it is his own.

299. The general principle is that a possessor of good faith is bound to restitution:

1. as often as he is conscious that he here and now detains another's thing without legitimate cause: the thing cries out for its owner;

2. as often as he has been made richer from another's thing: the thing bears fruit for its owner, and no one can become richer from another's thing.

For, as St. Thomas says, a. 6: "That which he has beyond what is his ought to be taken away from him and given to him who lacks it, according to the form of commutative justice."

For declaring this we shall successively consider the possessor as to the thing itself, as to the fruits of the thing, and as to expenses.

A. As to the thing itself. 1) A possessor of good faith, as long as he remains in good faith, can use another's thing as his own; and when the time required for prescription has elapsed, he becomes owner, if the other conditions are present.

2. When he discovers that the thing belongs to another, he is bound to preserve it and as soon as possible to offer it to the owner, or at least to warn him that he should take it away at his own expense; otherwise he would become a possessor of bad faith. For the thing cries out for its owner. But if he bought the thing, he will be able to recover the price from the seller, but not demand it from the owner before he renders the thing, unless civil law determines otherwise.

3. If, during good faith, another's thing has perished or been consumed or lost, he is bound to nothing: not by the title of unjust taking, which did not exist because of good faith; not by the title of the thing received, which no longer exists. For the thing perishes to its owner; unless, however, the possessor was certainly made richer from it, for example, if he had the price of the thing, such as he received from sale (a. 1380), or if he gave or consumed the thing when otherwise he would have given or consumed from his own: for then the thing exists in an equivalent.

4. If he possesses the thing not entirely but only in part, he must restore the part which he has; if the thing was made worse even from his fault, it suffices to restore it as it now is, unless he acquired a gain from it; if it was made better, expenses being deducted.

B. As to fruits. 1) Personal fruits, not indeed fruits of the thing but of mere industry, which, namely, were acquired on the occasion of the thing solely or principally by the possessor's own labor, are not to be restored, because the fruits of labor are proper to each person.

2. Fruits of the thing, whether natural, industrial (or mixed), or civil, provided they exist in themselves or in an equivalent and have not been legitimately prescribed, must be restored, with expenses deducted, however, which were necessary for gathering, producing, or preserving them.

3. Nevertheless, by French civil law, which has been adopted in almost all regions,¹ the possessor of good faith makes his own all fruits already perceived during good faith, or while ignorance has not yet ceased, even those still existing (a. 549 and 138), namely, if they have been separated from the thing, as to natural and industrial fruits, and as to civil fruits, if they have occurred. This law is just, as one passed for the common good, so that many lawsuits and inextricable difficulties may be avoided, and the possessor not suffer great damage from unexpected restitution, but each person may securely determine his expenses according to his revenues. For this, however, good faith of conscience is not sufficient, but juridical good faith is also required, namely, resting on a title transferring property whose defects are unknown (a. 550); if this is not present, civil law does not intervene, and then one must stand by natural law alone, as was said under 2.

¹ It holds in Belgium, Italy (a. 703), Spain (a. 451), Austria (a. 330), the Netherlands (a. 604), Switzerland (a. 938); by German law, if a possessor of good faith acquired the thing by a gratuitous title, he is bound to render the fruits, otherwise not (a. 988 and 2020).

Hence a) he who in good faith, by trading with another's money, for example, of a deposit, acquired great riches, is not bound to restore these to the owner, as being fruits of industry alone, but only the usual interest, which is a civil fruit;

b) likewise, he who made an artistic painting with another's brush and colors is not bound to yield it to him, but only compensation for the use of another's material;

c) he who is compelled to restore to the owner industrial or mixed fruits of the thing can demand compensation for expenses and labor, which is to be determined according to the estimation of a prudent man; or on the contrary, after this compensation has been deducted, he can pay to the owner the price of the fruits: thus, for example, if he gathers crops, with the usual price for the lease of the fields paid;

d) he who in good faith bought a stolen thing at a cheaper price and sold it at a dearer price can consider the increase as a fruit of industry alone if it can be attributed to labor and skill; on the contrary, as a natural fruit of the thing, if it proceeds from the thing itself, for example, if a calf grows or grain becomes dearer because of the market price.

C. As to expenses. Besides usufructuary expenses necessary for perceiving the fruits, which must be paid by the owner if he obtains the fruits (a. 548), the possessor of good faith can deduct:

1. necessary expenses without which the thing would have perished or been made worse, such as repairs made to a roof or the food of animals: for the owner himself also would have had to make these;

2. likewise useful expenses which render the thing better and increase its value, such as plantations and constructions, at least insofar as they do not exceed the increase of value; otherwise the owner would become rich from another's thing;

3. not, however, merely pleasurable expenses which are made for the sake of ornament or pleasure, without the value of the thing being increased: such as paintings, statues, fountains, etc., generally are; nevertheless he can take these away, if this can be done without detriment to the thing (a. 1381, and 1634, and 555).

300. What if another's thing has passed successively from one person to another or to several?

A. If this happens by an onerous title and:

1. there is place for eviction, so that the owner can demand the thing from the holder without recompensation, and the latter has no means of defending himself: this last holder is bound to render it to the owner; but he has recourse against others, namely, against the seller, and he against the one from whom he bought, and so afterward, until one arrives at the first unjust holder; — unless, however, the holder restored spontaneously to the owner, without consulting the seller, and thus was the cause that the seller could not defend himself from eviction (a. 1640 French, a. 1497 Italian);

2. if there is no place for eviction, because, namely, the owner cannot obtain his own thing at all (for example, when it has been consumed, the possessor has disappeared, or by civil law he cannot obtain it unless by paying the price²): the first seller is bound to refund to the owner the price of the thing insofar as he has been made richer from it, because this is the equivalent of the thing; but the other possessors are bound to nothing, because they were neither made richer nor inflicted damage. And the same seems to be said if the thing perished for the buyer, because by buying he took this danger upon himself,³ and the seller is considered to have conducted the business of the true owner. Some, however, say that in this case the price can be kept by the seller and that this is to be attributed to good fortune; and others say the same in the case in which the thing has been consumed, or the possessor disappeared; but this does not seem equitable nor just. No one ought to be enriched from another's thing with loss to him.

² From French law, which present-day laws have generally imitated, the owner must refund the price if the holder bought a movable thing at a market, public sale, or from a merchant selling things of the same species (a. 2080); by German law a possessor of good faith acquires dominion of property even in certain things taken by theft, namely money, monetary titles, and all things bought in public auction; but not in other stolen things (a. 985).

³ Unless it perished from a redhibitory defect: then the price would have to be restored to the buyer, because the sale would be null.

B. If by a gratuitous title a thing was transmitted from one to another, for example, by donation or succession, previous possessors who in good faith gave another's thing are bound to nothing, since they were not made richer from another's thing (unless otherwise they would have given from their own), but the last possessor must restore either the thing, if it exists, or that from which he has been made richer if he spared his own, unless the thing was legitimately prescribed.

C. If first by an onerous title and then by a gratuitous title, as if someone gives a thing of another which he had bought, he is bound to nothing, even if otherwise he would have given his own thing, because he is not richer; nor is the donee bound, because he succeeds to the rights of the buyer: then the first seller must furnish restitution.

This can also be proposed in this way:

A. Another's thing: 1) if someone received it gratuitously and gave it away, he is not bound to restore, unless otherwise he would have given from his own; but the last possessor is bound to restore;

2. if he afterward sold a thing received gratuitously, he is bound to restore the price, and indeed to the owner, if the latter paid the price to the buyer in order to recover it, or if he cannot have it or it has been consumed; — on the contrary, to the buyer, if the owner does not pay him the price, or if the thing perished by an intrinsic redhibitory defect.

B. A thing of another bought or received by another onerous title:

1. if someone sold it, he is not bound to restore the price, unless he is compelled to this by a judge, in which case he has recourse against him from whom he bought. But if he obtained a greater price, this can be considered as a fruit of industry, unless, however, it greatly increased from extrinsic circumstances, because then it would come to the owner;

2. if he afterward gave away gratuitously a thing bought, he is in no way bound to restitution.

In both cases the first seller is bound to restore.

301. Is a thing licitly returned to a thief, if this is necessary for recovering the price?

Resp. 1) If the owner demands his own thing before it is returned to the thief, the buyer is bound to restore it, for the thing cries out for its owner; unless, however, it has been otherwise determined by civil law.

2. If the thing bought has not yet been handed over by the thief, the buyer can rescind the contract and leave the thing to the thief. For he does not yet detain the good, and therefore he is not bound to take care of it.

Question 1. Whether a thief who secretly took a thing otherwise certainly about to perish is held to restitution?

Resp. Affirmatively, with the expenses made together with the price of the labor applied to freeing the thing from danger nevertheless deducted. The reason is that that thing did not cease to belong to the owner, although it had been exposed to the greatest danger. - Several probably except the case if the thief consumes a thing remaining in certain danger, for example, edible or drinkable things already about to perish by fire; because a thing not freed from danger is of no value to the owner. Several extend this to the case in which another's thing is withdrawn from proximate danger and immediately consumed: for example, if you take another's wine now certainly about to be seized by hostile incursion, and drink it with family or friends, because also in such a case the thing is judged to have no or almost no value. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 18, nn. 77, 144 and seq. - Elbel, n. 80.

Question 2. Whether a thief is held to restitution if the stolen thing has perished while with him?

Resp. Affirmatively, whether it has perished by the fault of the thief or of anyone else, or without any fault. The reason is that in that case, since the destruction of the thing must be ascribed to the theft, the thief is held to answer for it. Except the case of natural death from an intrinsic defect, or also of violent death, for example, from fire, but which would have taken place at the same time in the owner's possession, because then the damage could not be ascribed to the theft. - I said at the same time, because if it would have perished before and it is to be ascribed to the theft that it did not perish, it was already crying out to the owner while it remained in the hands of the thief, nor would it have perished if it had already been restored. But if it would afterward have perished in the owner's possession, the same obligation of restitution presses for the thief, who at the instant at which the thing perished in his hands contracted the obligation of restoring. Some require also that the thing perish in the thief's possession by the same danger; but, at least considering natural right alone, the necessity of this condition is not clear. - Cf. St. Alphonsus, n. 620. - Lugo, disp. 18, n. 141. - Vogler, n. 501. - Carrière, n. 1072.

Question 3. To what is a possessor of bad faith held, when the thing has had varying value during the time of detention?

Resp. In such a case one must attend both to the cause of such diversity, namely whether the thing had a different value by intrinsic and natural increase or rather by the variable estimation of men, and to the intention of the owner, namely whether he would have consumed that thing or rather sold it, and indeed at what time he would have sold it; and according to the measure of damage known from these circumstances, the thief must be obligated to restitution. But because almost all the aforesaid circumstances do not become known, for the most part compensation only of the value which the thing had at the time of the theft is to be urged. - Cf. St. Alphonsus, n. 621. - Lugo, disp. 18, n. 132. - Lacroix, lib. 3, part. 2, n. 233. - Carrière, n. 1073.

Question 4. What if another's thing has passed through the hands of several possessors of bad faith from donation or sale?

Resp. As to the thing, it is to be restored by him who still holds it, or changed it into another value, or consumed it, or lost it in any way. But, this one failing, the robber is held. But if neither has satisfied his debt, the rest must pay the price of the thing by equal portions. Finally, in defect of the rest, each one is held for the whole. But as to the fruits and damages of the thing, individuals are held to compensation for the part of the time during which each one held the thing. But if the others do not compensate for their part of the damaging and enjoyment, the reparation of the whole damage is incumbent upon each, yet pro rata for the time elapsed from the day on which successively they were made unjust possessors of another's thing.

Question 5. Whether he who knowingly bought another's thing from a thief can return it to him in order to recover the price?

Resp. It is controverted, almost as in the similar case of the possessor of good faith; but according to St. Alphonsus the affirmative opinion is probable, because although this man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, no otherwise than a possessor of good faith, to rescind the contract. Besides, by returning the thing to the thief, he places it in a condition not worse than that in which he himself found it. - Cf. St. Alphonsus, n. 570.

You will ask 1° what, and how much, the possessor in bad faith is held to restore.

I answer. The possessor in bad faith, beyond the fact that he is bound to restore all those things to which we said the possessor in good faith is bound by reason of a thing received, namely the existing thing, all natural, mixed and civil fruits still existing, or that by which he was made richer by these, is moreover bound, by reason of an unjust acquisition, to restore : 1° the value of the thing, in whatever way, even by chance, it perished; 2° all fruits, except industrial ones, which he himself received, even if the owner would not have received them, or which the owner legitimately received, even if he himself did not receive them, whether they exist or not, whether he was made richer by them or not; 3° all ceasing profits or ensuing damages to the owner from the unjust acquisition or detention of his thing. Because the unjust possessor, through the unjust acquisition and detention of another's thing, is the voluntary cause of all these damages, and is bound to repair the justice and equality which he thus voluntarily violated; but this reparation cannot be made except by the restitution of all the aforementioned things.

But these things are to be understood so long as the thing exists, whether it remain with the unjust possessor, or pass to anyone else in any way whatever. But when the thing no longer exists, it no longer fructifies to its owner, and then the unjust possessor is not held to restore the fruits which would be received if it still existed, except in the case where it would have remained longer with the owner and he himself would have received further fruits from it; for then the unjust possessor is held to restore even those according to the measure of the hope, because he is also the cause of that damage or ceasing profit.

You will ask 2° whether the possessor in bad faith is held to render the value of the thing if it perish with him, certain to perish with the owner.

I suppose as certain among all that, if the thing were going to perish with the owner through the injury of a third party, the thief or unjust possessor is held to restore : v. g., you kill the horse of Caius which Titius would certainly have killed, you steal and consume wine which another thief would equally have stolen away had it remained with its owner; you are bound, because, as the other by stealing contracted an obligation of restoring, so you, by stealing earlier, contract the obligation earlier.

But the difficulty is in the case where the thing perishes with the possessor in bad faith, certain to perish in the same way and at the same time with its owner : v. g., you stole a horse, which dies with you, about to die in the same way with its owner; sailing on a ship, you stole away the goods of another, and a storm arising, all the goods perish together with your theft. Are you bound to restitution of the value of the horse or of the goods? Some affirm, others deny. Therefore I think a distinction must be made. Whence

I answer. Either the thing manifestly appears certainly about to perish within a short time, or it does not appear manifestly. If the first, the possessor in bad faith is not bound to restore; if the second, he is bound.

The first part I do not think can be denied by anyone; because in that case the thing has no value whatsoever, and it is morally held as lost: whence no damage follows to the owner from the unjust detention.

The reason will be made clearer by examples. You stole a horse so manifestly sick that before a day elapsed it would die; you stole away oxen and sheep already on the point of being driven off by invading enemies, furniture from a fire, goods from a shipwreck, and these are driven off or perish with you by the same chance event and at the same morally reckoned time. You are not bound to restore anything; because those things at the time of their taking away were of no value, nor did they begin to be of value to the owner while with you, since they were always in the same danger.

[By Gallican and Italian law, however the stolen thing may have perished or been lost, the thief is not exempted from the obligation of restoring its price³⁷¹ . A twofold reason can be brought forward : 1° because from the beginning the thief is at fault and in delay of restoring; 2° because, although by natural law the thief is bound to nothing in this case, restitution is legitimately imposed upon him by public authority, in punishment and vindication of his fault and injury, and on account of the motive of public order. Nevertheless he may await the sentence of the judge.] ³⁷¹ Cod. Gall., art. 1302; Ital., art. 1298.

Proof of the second part, which is more contested. 1° The possessor in bad faith contracts a twofold obligation, one by reason of the thing received, the other by reason of the unjust acquisition or detention; and the owner a twofold action, one in rem, the other against the person of the possessor. The thing perishing, the first obligation and action alike are indeed extinguished, but not the second; for this lasts as long as the thief does not repair the justice and equality which he violated, as is plain both from the nature of the thing and from the common sense of theologians and jurists. Yet this reparation is made only by restitution. Therefore, if restitution is not made, the owner is injured in this right or action of his.

You will say, an unjust acquisition does not give birth to an obligation of restoring in the thief, nor attribute an action to the owner, except insofar as it is damaging. Yet it is not damaging in the case where the thing would equally have perished with the owner. Therefore.

I answer. I deny the minor. For by the very fact that you despoil the owner, reasonably unwilling, of his thing not manifestly about to perish, although he must be deprived of it by another unknown cause, you efficaciously inflict damage upon him; because in such a case the thing is worth so much, according to the estimation of men, as if it were not about to perish. But that the owner is tomorrow to be deprived of the same thing by an unforeseen cause does not make it so that you, forestalling that cause, inflict no damage upon him, but only makes it so that the damage which tomorrow would be imputed to another cause, for example fire or shipwreck, is now imputed to you : just as your killing Titius today, who was tomorrow to be killed by a wild beast, does not make it so that you are not truly a homicide, a true damager and truly bound to restitution; but only makes it so that this killing is today imputed to you, otherwise tomorrow to be imputed to the beast.

And it seems wonderful that the adversaries concede all these things, even with respect to the obligation of restoring, if Titius were tomorrow to be killed unjustly by a free cause, and deny it concerning a necessary cause, seeing that a future killing by a necessary cause no more prevents your present killing from being damaging than if it were to be by a free cause.

Proof 2°. He who unjustly steals the thing of another, or unjustly detains it, according to the apprehension of men and every law, takes upon himself all risk of the thing, and therefore it is commonly said that the possessor in bad faith is liable for the fortuitous event; so that in such a case the thing does not perish to its owner, but to the unjust possessor, just as by force of a contract of insurance a thing perishes to the insurer, and not to its owner, in this sense that the insurer ought to pay back the value of the thing to its owner.

Whence, in our case, the condition of the owner becomes better to that extent, that he acquires a right that his thing, or its value, be rendered to him, from whatever state it may have arrived. Therefore, if it is not rendered, he is injured in that right, and damaged.

It is confirmed. If a thing bought and delivered yesterday, the price not paid, should perish today with the buyer, about to perish in the same way with the seller, the buyer is nevertheless held to pay the price agreed upon yesterday. Therefore likewise the thief is held to render the value of the stolen thing. — The consequence is plain; because the obligation of the thief contracted from a delict is no more extinguished by the destruction of the thing than the obligation of the buyer from contract. And if you say that by purchase and delivery he becomes owner of the thing, but a thing perishes to its owner, I shall answer, as above, that the thief by the unjust detention takes upon himself all risk of the thing, and thus the thing perishes to him, in this sense that he is held to render its value.

You will ask 3° to what the possessor in bad faith is bound by reason of improvement and deterioration.

I answer 1°. The possessor in bad faith is held to restore the thing, or its value, according to the state of improvement, whether intrinsic or extrinsic, which it would have had with its owner if the unjust possessor had not stolen it away or detained it, even if with himself it had not been in that best state. This is the common and certain opinion; because, since through his unjust taking away or detention he impeded this best improvement of the thing with its owner, it is evident that he is bound to compensate it.

I answer 2°. The possessor in bad faith is held to render the value of the thing according to the best state of improvement, intrinsic as well as extrinsic, which it had with himself, although this improvement would not have existed with the owner, or would not have profited him.

Consider the case. You stole a colt which grew up with you into a robust horse, and then grew old : behold intrinsic improvement and deterioration. In September you stole a measure of wheat worth three gold pieces, in January kept with you it is worth four gold pieces, in June, harvest near, it is worth only three gold pieces, or less : behold extrinsic improvement and deterioration. You are bound, I say, to render the value of a generous horse, and four gold pieces for the measure of wheat, even if such improvement had not profited the owner, either because he would have sold the horse or the grain before the time of improvement, or because he kept them until the time of deterioration : so that, if, at the time when you restore, the thing still exists with you in a worse state, it does not suffice to restore it as such, but you are bound to add something to compensate the past improvement.

Proof from the preceding principles. 1° A thing, so long as it remains, is improved to its owner, whether intrinsically or extrinsically, and of how much it is worth at any time, of so much is it worth to its owner. Therefore the possessor in bad faith inflicts damage upon the owner while he does not restore it to him according to what it was worth at its highest. Nor say that it also decreases to the owner, for we have shown that to be false; because, as we proved, the possessor in bad faith takes upon himself all risk of the thing, and thence the fortune of the owner becomes better. Whence, just as if the thing perchance perish with the thief himself, even though certain to perish with its owner too, he is held to render it as if existing in its value, as was said; so also, if the thing deteriorates, although it would have been deteriorating with its owner, he is held to render it not deteriorated, but improved as before while with him.

When the possessor in bad faith detained the thing of another at the time of greater value, whether intrinsic or extrinsic, he was bound to render it as it was, and from then, by reason of the unjust detention, contracted the obligation of restoring it according to that highest value which it had, no otherwise than if he had received it then for the first time. « As receiving the thing of another, says St. Thomas, is a sin against justice, so also is detaining it; because by the fact that someone detains the thing of another against the wish of its owner, he hinders him from the use of his own thing, and thus does him an injury ³⁷² . » Whence each has the same character of harm. Yet an obligation once contracted by reason of an unjust acquisition or detention, just as it is not extinguished by the fortuitous destruction of the thing, as was said, so neither by a subsequent deterioration, but by restitution alone or the condonation of the owner. Therefore. ³⁷² Here q. 62, a. 8, in c.

[Against the superior conclusion several say that, if the thing was to be kept by the owner until its decrease, the thief is not held to pay more than the value which it would then have had; because the owner truly suffers no loss, and is put back into the same state in which he would have been if no injury had been committed. This opinion is probable enough, so that it can safely be led into practice.]

The following things are to be held as certain ³⁷³ . ³⁷³ Gury, n. 648.

1° If the thing has become worse with the thief, it is to be restored according to the value which it had at the time when it was taken away. Otherwise the owner would not receive all that was his own. — This, however, according to Lessius, lib. II, cap. XII, n. 103, is to be understood in the sense that the thing decreased through the fault of the detainer; for if it is worse by its nature, in the same way as it would have become with its owner, it is to be restored as it is, since the thing decreases to its owner. But at the same time there must be compensated the damage which the owner perhaps suffered from the privation of his own thing. And this must be observed in every case.

2° If the owner would have sold his own thing at the time when it was taken from him, and the thief sold or consumed it at the same time, he is held to restore only the value which it then had. — But if the thief be in delay about paying back the price, he is held to compensate the damage ensuing from the delay to the owner.

3° If the thing with the thief first increased and afterward decreased, and it be established that the owner would have sold or consumed it at the time when it was of greater price, the thief is held to render him the greater price.

4° If the thief sell or consume a thing not to be kept by its owner at the time of greater price, he is held to render the whole price to the owner : 1° because the thing fructifies to its owner ; 2° because no one can grow rich from the thing of another ³⁷⁴ . But if he sold or consumed this thing not to be kept by its owner at the time of lesser price, several contradicting, more commonly and more probably he is held to have only this price refunded ; unless it be established that the owner could not have procured a like thing for himself at the same price ³⁷⁵ . ³⁷⁴ S. Lig., lib. IV, n. 621. ³⁷⁵ Id., ibid.

Lugo hands down a general rule for similar cases, disp. 18, n. 133 : « Whenever, he says, the question concerns the restitution of ceasing profit or ensuing damage, the restitution must be made not integrally, but according to the greater or lesser certainty of such profit, or of the avoidance of such damage, namely as much as that uncertain hope could be worth, all the things being weighed by which the effect could have been impeded. And this, even if the obligation of restoring descend from a delict. »

You will ask 4° whether he who consumed a stolen thing in extreme necessity is held to restore.

I answer, negative. He was indeed bound to restore before he was placed in such necessity, but theft does not destroy the right which he had to the thing in such a case. He must therefore be held in the same way as if he had received and consumed the thing in the very necessity itself ³⁷⁶ . ³⁷⁶ Id., ibid., n. 623.

You will ask 5° whether he who bought the thing of another from a thief can render it back to him, that he may recover the price paid.

I answer. It is denied more commonly. But St. Liguori holds the affirmative opinion, as absolutely probable and indeed more probable, with many others : « The reason is that, although he sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as the buyer in good faith, to rescind the contract by rendering the thing back to the thief ; for the reception of the buyer, once retracted, is not in fact the cause why the owner loses his thing ³⁷⁷ ». But if, on account of longer detention with the buyer, damage should accrue to the owner on this head, it would have to be compensated. ³⁷⁷ Id., ibid., n. 570.

You will ask 6° what, if the thing of another has passed through the hands of several possessors in bad faith, by donation or sale?

I answer 1°. As to the thing, it is to be restored by the last possessor. That one failing, the ravisher is bound for the price of the thing. But if neither satisfy, the rest ought to pay the price of the thing in equal parts. Finally, the others failing, each is bound to the whole, because the obligation lies upon them in solidum.

I answer 2°. As to the fruits of the thing or damages ensuing from the detention, each individually is bound to compensation for the part of the time during which he detained the thing. But if the rest do not restore for their own part of the damaging and enjoyment, the reparation of the whole damage falls to each one, pro rata of the time elapsed from the day on which they successively became unjust possessors of the thing of another ³⁷⁸ . ³⁷⁸ Gury, n. 630.

You will ask 7° whether the thief, besides the money taken away, ought to restore also some increment.

I answer, affirmative, if it be established or legitimately presumed that the owner was going to receive profit from his money; because he has suffered loss, and he ought to be made whole; but otherwise in the opposite case, because the owner, who underwent no loss, would grow rich from the thing of another ^{379 379} Id., n. 649.

You will ask 8° whether the possessor in bad faith can deduct the expenses incurred in preserving or improving the thing.

XV. He who possesses another's thing not consumable by use — namely a horse, a book, a picture, and the like — whether in good or in bad faith, is bound to restore the same if it subsist, because this, while it subsists, cries out to its lord, as the common and true opinion teaches. A possessor in bad faith, whether the thing subsist, or have been consumed, or sold, or have perished, even without his own fault, ought to restore either the thing or the price of the same. Besides which, the unjust plunderer or retainer is bound to compensate all the losses which the lord has suffered on account of the privation of his thing. You have plundered or retained the moneys of a merchant, which if he had had he would have exposed to trade, or would have repaired imminent losses: beyond the restitution of the money plundered or unjustly retained, you are bound to compensate the losses and the gains not obtained on account of the privation of that money.

XVII. If you snatch another's thing from a fire, and, the danger being past, retain it, and it perish with you, not being about to perish with the lord, you are held to restitution, all confessing it. He who in bad faith filches another's thing, which if kept would turn out better (say you have laid waste a vineyard or crops unripe at a time when they were worth fifty, but at the time of ripeness would be worth a hundred): if the lord was going to sell those things at the time when you plundered them, you ought to restore the price according to the value which they have in the former state; but if he was going to preserve the aforesaid things, there is to be restored as much as, according to the estimation of prudent men, is worth the hope of keeping those things until the better state.

XXI. QUESTION XIV. What fruits ought a possessor of bad faith to restore? ANSWER. He is bound to restore all natural and industrial fruits which the lord would have perceived, expenses being deducted, whether they subsist or not, whether he has been made richer or not. The same is to be said of a possessor of good faith, from the time at which he became conscious that the thing was another's. If he defer restitution, he becomes a tardy debtor, and is bound to restore all the fruits which he perceives, and to compensate both emerging losses and ceasing gains. If a thief does not perceive the fruits which the lord would have perceived, he ought to restore the price of the same. On the contrary, if the lord would have perceived no fruits, then, although the robber does not perceive them, he is not held to their compensation. But if the thief perceive natural fruits which the lord was not going to perceive, he ought to restore the same, because the thing would have borne fruit for the lord.

I have said much above about Restitution, which is indeed necessary, not indeed by necessity of means, as I said there with St. Bonaventure — for without it one can be saved, if a thief has no means by which to make restitution — but by necessity of precept, as is commonly held with the Seraphic Doctor, who gathers this in the Confessionale, cap. 4. part. 2, and in the Mirror of the Soul, cap. 1, from St. Augustine epist 54. ad macedon. t 4. quaest. 6, where it is said: If the goods of another, on account of which the sin was committed, can be restored and are not restored, penance is not done but feigned. But if penance is done sincerely, the sin is not forgiven unless what was taken away is restored. The same is taught by Petrus Navarrus, Lib. 1. de restitut. cap. 1, Valentia disp. 5. puncto 2, Aragon. 2. 2. quaest. 62. art. 2, Sayrus L. 10. Tract. 1. cap. 4. For necessity of precept exists when it can be fulfilled; but necessity of means is absolute, without which salvation cannot be obtained.

You will object that the particle Unless indicates a necessity of means, John 3: Unless a man be born again, etc. And: Unless you do penance, etc.

The Holy Doctor answers, in 4. dist. 12. part. 2. art. 2. quaest. 1, that necessity of means is not always indicated, for in John 6 it is said: Unless you eat the flesh of the Son of man, you shall not have life in you, and yet Communion is not necessary as a means.

I suppose, moreover, that restitution is brought in by the violation of justice alone, as all commonly teach. Doctors, however, labor in assigning the reason why justice alone demands restitution for its own equality.

Valentia, disp. 5. quaest. 6. puncto 3, as in Sayrus Lib. 10. Tract. 2. cap. 1, gives a certain reason, not the one we seek, but why one man is bound to restitution and another is not; namely, because the one sinned against justice, the other against another virtue, say, of Charity.

Navarrus, in man. cap. 17, says that other Doctors have not given the reason of this matter, but that he himself gives a new one, namely that other virtues are not violated by the taking away of some external thing. Which Petrus Navarrus says in other words, L. 2. cap. 1. num. 12. de restit., although he wished to carp at the reasoning of the other Navarrus.

Sylvester, V. restitutio, 3. quaest. 6. §. Tertium, says the reason is that no one is bound to restitution except the one who is the cause of the inequality of goods; but it belongs to justice alone to cause equality. Sayrus subscribes to this reason, Lib. 10. tract. 2. cap. 1. num. 3, namely because it turns on debit and credit.

The Seraphic Doctor, best of all, in 3. dist. 33. quaest. 3, says the reason is that justice, among the others, is ordered to another, in rendering all things that are each one's own, and because it is one of the virtues that order to another according to the ratio of debt; Therefore this virtue, which is Justice, brings in restitution.

He explained it, moreover, more fully in quaestione 1: that justice is not rectitude of the will as such, but such rectitude as orders to another, having as its object right, or the useful good, which is another's. So that restitution arises from damage inflicted in goods, whether of wealth, or of reputation, or of honor, or of life, as the Seraphic Doctor discusses in the Mirror of the Soul, cap. 1. We now treat of damage in temporal property.

And indeed in theft a twofold root of the precept of restitution arises, both from iniquitous taking and from iniquitous detention or possession, as the Holy Doctor says there.

And because it is clear that under the name of another's goods not only the thing but also the fruits, which the thing itself by its nature is accustomed to bear, is understood; Therefore here I shall discuss in what manner restitution is to be made on account of the fruits of the stolen thing. On this Fagundez treats at length, Lib. 7. cap. 15. and 16.

Stolen things, then, are of a twofold difference; for either they are things which have increase and decrease from within, as a foal, a growing calf, trees, etc.; or they are things which have decrease or increase from without, from the time and place where they are sold, as wheat, wine, oil, cloth, and other similar wares.

In guarding and feeding these, etc., expenses occur: some necessary for feeding the foal, and others useful, which the owner would not have made for improving that thing — say, to feed the foal with grain, that it may grow stronger.

Therefore, if the thing still exists, it must be restored to the owner, after deducting the necessary expenses and reasonable useful expenses in the forum of conscience. So Lessius lib. 2. cap. 12. de iniur. Fortun. disp. 16. num. 10, Petrus Navarrus Lib. 4. disp. de restit. cap. 1. num. 30. and 32, Covarruvias ad regulam peccatum, part. 2. §. 6, Medina, Cod. de restit. quaest. 6, Sylvester V. expensa, quaest. 4, Fagundez lib. 7. cap. 15.

In the external, or judicial forum, however, useful expenses are not compensated, nor the thief's industry in improving the thing; for in punishment of the theft, useful expenses are forfeited: Lex, si a Patre, §. fructus, ff. de petit. heredit. et Leg. plane, in fine eodem tit. et Institutio de rerum divisione, §. ex diverso, and the authors cited teach this.

But if the thing has already been alienated, with that intrinsic improvement, the thief is bound to restitution to the owner for the whole benefit, the expenses having been deducted, as above. So Filliucius Tom. 2. tract. 32. cap. 4. num. 88, Covarruvias reg. Peccatum, §. 6. num. 1. part. 2, Navarrus summa Lux. cap. 17. num. 36, Gabriel dist. 15. quaest. 2. art. 3. dub. 1, Angelus V. furtum, quaest. 44, Sylvester V. restit. 1. quaest. 7, Lessius lib. 2. cap. 12. de iust. disput. 16. num. 105, Petrus Navarrus Lib. 4. cap. 1. num. 57, Fagundez num. 9, and cap. grauis de restitut. spoliat., and Leg. in restituta, §. de furtis, and L. si nauis, §. si generaliter, ff. de rei vendit. apply.

The RATIO is drawn out by St. Bonaventure, in the Mirror of the Soul, cap. 1, at the end, because during that whole period the thief was under a continuing obligation of restitution: Therefore also for the time when it was in its best state and had a greater price. Yet Diana adds, p. p. Tract. 17. resol. 51, that this is true if the owner was going to sell the thing at the highest price, in its best state; and he says this is the opinion of all the Recent writers.

I say thirdly. If you have trampled down green crops, you are not bound to restore the whole of what they would have been worth at harvest, but according as they were appraised in hope, the dangers of hail, etc., being computed. So Lessius L. 2. cap. 12. cit. disp. 19. num. 135.

I say fourthly. Wheat, wine, and other wares are to be restored at that price at which they were to be sold by the owner, in time and place lucrative. So the Doctors cited. See Fagundez loco cit. Yet if it is unknown when they were to be sold, it suffices to restore the mean price, nor is the highest necessary. So Diana p. p. Tract. 17. resol. 52, or by referring it to a prudent man.

I say fifthly, as to the fruits of things that commonly yield profit, as fields, vineyards, etc.: the thief is bound to restore the lands with the fruits, the expenses deducted. So commonly the Doctors, in Fagundez, cap. 16. num. 6.

It is proved by St. Bonaventure, loco cit., because thieves and possessors in bad faith do not acquire dominion over those things which are not consumed by use.

They assert this even if the owner, through his own negligence, would not have gathered those fruits; and then they say that he is bound also to restore the fruits which the owner would have drawn and which the thief, through negligence, did not take. So Lessius dub. 17. num. 115, Fagundez num. 14.

I say sixthly. If a thief trades with things consumable by use, and gains something, he is bound to restore the things, and the ceasing gain, and the loss accruing to the owner. So St. Thomas 2. 2. quaest. 78. art. 3, Sotus L. 6. de Iust. quaest. 1. art. 4, Covarruvias Lib. 3. variar. resol. cap. 3. num. 6, Panormitanus cap. nauiganti de usuris, num. ultimo, Molina Tom. 2. de Iust. disp. 327, Angelus V. usura 1. num. 15, Sylvester V. usura 6. quaest. 2, Fagundez num. 17. It is clear ex Leg. 1. Cod. si quis alteri, vel sibi, and Leg. penult. eodem titulo.

I say seventhly. If a thing perish in the thief's keeping which was not going to perish with the owner, whatever the cause of its perishing, the thief is bound to make restitution. So St. Thomas 1. 2. quaest. 62. art. 6, Lessius Lib. 2. cap. 12. et dub. 15. num. 90.

The RATIO from St. Bonaventure is: because the thief was at fault for delay, detaining that thing. But if the thing was certainly going to perish even with the owner, he is not bound to restore it. So St. Thomas loco cit., and commonly others, in Fagundez, cap. 17.