The possessor in doubtful faith

450. A possessor in doubtful faith is not said to be one who doubts from only a slight reason whether the thing which he possesses belongs to another: for he is bound to nothing and can retain the thing for himself; but a possessor in doubtful faith is said to be one who doubts from a grave and probable reason whether the thing which he possesses is his or another's. Now this can happen in two ways: either the doubtful faith is supervening, namely when he accepted the thing in good faith and afterward a doubt arose; or the doubtful faith is antecedent, when he accepted the thing when the faith was already doubtful.

451. In the case of supervening doubtful faith. 1. When doubt has arisen, he is bound diligently to investigate the truth, and with so much greater solicitude as the thing about whose ownership he doubts is more precious. During the investigation he must preserve the thing; but if afterward, once investigation has been made, the doubt perseveres, he can retain the thing and dispose of it: for by possession in good faith he acquires the right of disposing of the thing until it is established that it belongs to another.

If afterward the owner appears, he is bound to restore as a possessor in good faith, namely the thing itself if it still exists, or, if it no longer exists, that in which he has become richer, unless meanwhile he has acquired ownership of the thing by prescription: for a supervening doubt does not impede prescription (n. 403).

2. If, once doubt has arisen, he culpably neglects inquiry, by this culpable negligence itself he begins to become a possessor in bad faith. Therefore:

a. If a certain owner afterward appears, he must restore to him as a possessor in bad faith: the thing, fruits not yet prescribed, loss of profit, and emergent damage from the time at which he became a possessor in bad faith.

b. If a certain owner afterward does not appear, and from the omitted inquiry it has become impossible for the doubt to be solved, restitution must be made to the owner who possesses a doubtful right to that thing, according to the ratio of the hope which he had of recovering his own thing. But if no determined person has a doubtful right, he can retain the whole thing, because he began possession in good faith.¹

The hope which the owner would have had of recovering his own thing is worth much less than half the price of that thing about whose ownership there is doubt. If, however, it is established that the owner at the time when the doubt arose had no hope of recovering his own thing, he is bound to nothing: for the thing, as abandoned, had then already passed into the ownership of the possessor.²

3. He who inculpably omits inquiry is held as a possessor in good faith; therefore if he consumed the thing, he must restore only that in which he has become richer.

He alone is considered culpably to neglect inquiry who omits it from grave negligence; therefore he who from inadvertence or invincible ignorance, or in good faith thinking that the owner cannot be found, or from light negligence omits inquiry, is considered to have neglected it inculpably. But grave negligence is present if inquiry is voluntarily omitted as long as probable hope shines forth that the owner can be found.

¹ Bucceroni, Institutiones theol. moral.^3 I, n. 1353; Genicot, I, n. 534.

² St. Alphonsus, l. 1, n. 37; Ballerini-Palmieri III, n. 439.

452. In the case of antecedent doubtful faith. 1. He who in doubt despoiled a possessor in good faith is bound, if the doubt cannot be solved, to restore the whole thing to the possessor in good faith; for him himself who probably thinks the thing is his own only recourse to a judge lies open: for in doubt the condition of the possessor is better.

2. He who despoiled no one, but knowingly accepted a thing (for example, by buying) from a possessor in doubtful or suspicious faith, is bound, if the doubt cannot be solved, to restore according to the ratio of the doubt, and indeed to the probable owner, if he can be found, and if he cannot be found, to the poor or to a pious cause. For he cannot retain the whole, because the doubt prevents him from ever becoming simply the owner of the thing; but neither must he return the whole, because it is not certain that the thing belongs to another.

"Artisans and merchants who buy from those about whom they greatly doubt whether they sell their own things or another's, buy in bad or at least doubtful faith, and therefore will always be bound to restore either the whole or a part."¹

3. He who accepted a thing with doubtful faith (for example, by buying) from a possessor in good faith, if the doubt cannot be solved with moral diligence applied, is probably bound to nothing: for he can use the right of him whom he succeeds.²

¹ Lugo, disp. 17, n. 81.

² Lugo, l. c., n. 83.

There is only question here of one who has well-grounded reasons for thinking that something in his possession belongs to another. We do not contemplate the case of one who merely suspects without solid reason that what he has belongs to someone else, much less the case of one who is ignorant of what title he has to his property. The doubtful faith of such a one as we are contemplating may date from a period subsequent to his obtaining possession of the property, or it may date from the time of his gaining possession of it; the possessor’s obligations will be different as one or the other of these suppositions is verified.

When the possessor was at first in good faith but afterwards a doubt arose as to whether the property really belonged to him, inquiry must first of all be made to try and find out the true owner. Unless the possessor in doubtful faith does this, he exposes himself to the danger of keeping what does not belong to him, and thereby sins against justice. If he discovers the rightful owner, the doubt is solved; if after inquiry the question of ownership still remains doubtful, the possessor may keep the property and use it as his own. for in dubio melior est conditio possidentis. * Encyclopedia of Laws of England, s.v. Conversion, Action of.

If the possession began in doubtful faith, and the property was taken from another’s possession, injustice was committed, and the whole must be restored to the original possessor, for possession was in his favour.

If the property came into the hands of the doubtful possessor by sale or gift, or in some other lawful way, presumptions may sometimes be used to solve the doubt. Thus, even though we get a more than usually cheap bargain, we need not conclude that the seller is a thief, for nemo malus praesumitur nisi probetur.

If the doubt cannot thus be settled, nor the question of ownership cleared up by diligent inquiry, theologians commonly teach that the property must be divided according to the probabilities of the case. For one who began to possess in doubtful faith cannot claim the benefits of possession and keep the whole. He may, however, keep a portion corresponding to the degree of probability of his right of ownership. A few recent theologians, however, doubt whether this solution rests on solid grounds, for even the possessor in doubtful faith has at least the fact of possession in his favour, and, ex hypothesi, it is not certain that he is not the rightful owner; in fact, he has some claim to be considered the rightful owner. These theologians, therefore, would permit the possessor in doubtful faith to retain the property, provided that he be ready to surrender it to the rightful owner if and when he should appear.¹

¹ Bucceroni, I, n. 1354.

II. Division of possession. Possession, not indeed by reason of itself but by reason of the mind with which it is possessed, is divided into possession of good, bad, and doubtful faith.

1. Good faith is had when the possessor judges that he licitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is his own; 2. when the possessor, although he doubts whether the thing is his own, nevertheless detains it without fault or, if there is question of a grave thing, at least without grave fault. These things will be explained more fully later.

2. Bad faith is had when the possessor judges that he illicitly retains the thing; in other words, it is had: 1. when the possessor is conscious that the thing is another's; 2. when the possessor doubts whether the thing is his own and detains it with fault, if there is question of a light thing, or with grave fault, if there is question of a grave thing.

3. Doubtful faith, strictly speaking, is not had, because one who doubts whether the thing possessed is his own necessarily detains it either without fault or with fault; in that case he becomes of good or bad faith, as the case bears according to the things explained above. But what is lawful for one doubting whether the thing possessed is his own, we shall explain later. I said strictly speaking; but doubtful faith is customarily taken for the doubt of a possessor whether the thing possessed by him is his own. What is lawful for one thus doubting, however, we shall say at once.

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.

652. Principles. - I. A possessor of doubtful faith, whether he doubted from the beginning or only in the course of possession, is held seriously to inquire, so that he may put away the doubt. The reason is plain; otherwise he exposes himself to the danger of retaining another's thing from his own culpable negligence.

II. If, diligent inquiry having been made, the doubt perseveres, more probably he can retain the whole thing, if before the doubt arose he possessed in good faith. The reason is that in an equal case, or doubt, the condition of the possessor is the better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and attributes to the possessor a certain right, which, unless it is overcome by other stronger reasons or presumptions, ought to prevail both in the internal and in the external forum. - St. Lig., l. 1, de Consc., n. 34. - Lugo, D. 17, n. 86. - Lacroix, n. 563. - Carrière, n. 1094, and others commonly, against some who say that the thing must be divided pro rata of the doubt.

III. If the doubt preceded the possession, a distinction must be made. For he who in doubt began to possess by despoiling another of his possession is held to restore the whole thing to the prior possessor ¹, when it is not established that this latter began to possess the thing in bad faith; because in an equal cause his condition is the better, as being possessor. - Lugo, D. 17, n. 80. - Carrière, n. 1100.

¹ Understand, if the doubt afterwards perseveres.

But he who accepted the thing by another title, for example, of purchase, and after diligent examination the doubt still perseveres whether he from whom he accepted it is its owner, must restore, pro rata of the doubt, to the probable owner, or to the poor if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor on the other hand does he seem held to restore the whole. - St. Lig., n. 625. - Lugo, ibid.

653. Questions. - Q. 1. To what is he held who accepted some thing in bad faith, judging it to be another's, and afterwards doubts whether the thing is his or not?

Resp. He must be equated with him who began possession with doubtful faith; for the prior estimation is found to be false, and consequently is not to be attended to in the solution of the case. Therefore weigh whether by his possession he despoiled another or not, and resolve according to what was said in principle III.

Q. 2. What if such a possessor neglected to inquire from the beginning, and afterwards the owner of the thing can no longer be found?

Resp. It seems that something must be restored to the poor pro rata of the hope which the owner could have had of recovering his thing. Generally that hope does not attain half the price, but is of much lesser value. - St. Lig., de Consc., n. 31. - Lugo. - Lacroix, n. 564, etc.

654. • Q. 3. To what is a possessor of doubtful faith held if he neglected to inquire, and the owner appears?

Resp. Generally after the beginning of the doubt he must be treated as a possessor of bad faith; therefore he must be obligated not only to give the thing back to the owner, but also to repair all damages to him. - Lessius, c. 14, n. 83. - Carrière, n. 1088, and others commonly.

He seems to be excepted who began possession in good faith, and afterwards, when doubt had arisen, neglected to inquire, thinking that the owner could be found only with difficulty; for he would be equated with a possessor of good faith.

655. • Q. 4. Whether a possessor of doubtful faith can prescribe, if, the due inquiry having been made, the doubt perseveres?

Resp. 1. More probably affirmatively, if he began to possess in good faith; because that persevering doubt, notwithstanding the diligence applied, is invincible, and consequently even while it remains, conscience can be formed from that principle especially: The condition of the possessor is the better.

Resp. 2. But negatively, if he began to possess in doubtful faith, because he lacks the good faith required for prescribing. - St. Lig., n. 504. - See above, n. 589.

Q. 5. Whether a possessor of doubtful faith who began to possess in good faith is held to restitution if, inquiry having been made, he finds that the thing is more probably another's?

Resp. More probably negatively, because from certain possession a morally certain right arises. Besides, until another has proved his certain right, the axiom has force: The condition of the possessor is the better. - St. Lig., l. 1, n. 35, and others very commonly according to St. Lig., against some who teach that then restitution must be made pro rata.

Q. 6. Whether a debtor, in doubt concerning the completed payment of the debt, is held to pay integrally or in part?

Resp. Generally one must attend to the various circumstances of things, so that it may be discerned whom the presumption favors. - See what is to be said concerning the causes excusing from restitution, n. 721.

656. Resolutions. - 1. If you possessed another's thing in good faith, and when a doubt supervened and remained after inquiry, relying on the principle of possession, you consumed it, but afterwards the owner unexpectedly appears, you will be held to restore only that in which you have been made richer. This follows from what has been said. - St. Lig., n. 607, 608.

2. When none of those concerning whom there is doubt whether they are owners of the thing possesses the thing itself in fact, if the doubt is equal, the thing must be divided equally among them; but if the doubt is unequal, it seems to have to be divided according to the proportion of the doubt. But if the thing cannot be divided, it must be sold, so that the price may be divided; or, from the consent of the parties, it must be granted to one who is obligated to render the right to each of the others; or also it must be cast into lots, so that it may be assigned to him whom the lot will favor. - Lacroix, n. 566. - Sanchez, Decal., l. 2, c. 23, n. 173. - Carrière, n. 1101, and others.

3. If you doubt whether your predecessor possessed goods by a legitimate title, you can, the matter having been weighed and the doubt persevering, nevertheless accept and retain the inheritance, provided it is established that he possessed in good faith. For if the axiom, in doubt the condition of the possessor is the better, favors your predecessor, it favors you also as successor; for in this case the principle of the possessor of doubtful faith who began possession in good faith must be applied, since predecessor and successor by law effect one moral person.

4. In doubt whether someone began possession in good or bad faith, it must be presumed in favor of the possessor, because delicts are not presumed but must be proved. Yet if someone is found actually in bad faith, and it is doubted whether he began to possess with this bad faith, he must be presumed to have been of bad faith from the beginning, because one who is once bad is always presumed to be bad, according to Rule of Law 8 in the Sext. - Thus Lacroix, n. 567. - Lugo, D. 18, n. 16. - See Casus, n. 622.

512. A possessor in doubtful faith is he who from a grave and probable reason doubts whether the thing which he detains is his own or another's; hence a merely negative or altogether light reason does not suffice for this. - When someone began to possess a thing in good faith, and afterward a doubt arose, the doubtful faith is called supervening; if the doubt preceded the very occupation, it is called antecedent doubtful faith.

513. 1. In the case of supervening doubtful faith, these are the duties of the possessor:

(A) Once doubt has arisen, he must diligently investigate the truth, and indeed with that diligence which corresponds to the value of the thing and the gravity of the doubt; otherwise he would deservedly be held as a possessor in bad faith. Meanwhile he cannot sell or consume the thing, unless he is prepared to render an equivalent to the owner.

(B) After diligent inquiry has been made: (a) if it is morally certain that the thing is another's, he must restore the thing and the fruits, as was said above concerning the possessor in good faith; (b) if the doubt perseveres, more probably he can retain the thing, because in doubt the condition of the possessor is better. Hence he can consume the thing or use it, provided he is prepared to render the thing or its price to the owner, if he appears before the time of prescription has elapsed; indeed he can sell the thing, provided he warns the buyer about the doubt, lest the buyer be deceived. Notwithstanding the doubt, he can prescribe at the opportune time.

514. 2. In the case of antecedent doubtful faith, the possessor likewise must diligently investigate the matter; but if the doubt remains, a threefold hypothesis can be imagined: -

(a) If someone has taken a thing away from a possessor, doubting whether he has a right to do this (e.g., probably judging that he has a right to part of an inheritance, he appropriated this to himself without recourse to the judge), he is equated with a possessor in bad faith; for in doubt the condition of the possessor is better.

(b) But he who acquired a thing by purchase, donation, or another legitimate title, doubting whether the seller or donor is truly the owner (e.g., he buys jewels at so low a price that he can deservedly suspect the thing to be stolen), more probably must restore, according to the proportional part of the doubt, to the owner, if he can be found, or to a pious cause; for he cannot retain the whole, because he began possession without good faith; nor however is he bound to render the whole, because it is not certain that the thing is another's. - But if he bought or accepted the thing with the intention of returning it to the owner as soon as the latter can be found, he is equated with a possessor in good faith, and can detain the thing until the owner appears.

(c) If someone occupies a thing occupied here and now by no one, doubting whether this is a thing of no one or not, whether it was lost or abandoned, he cannot retain it except conditionally, that is, with the intention of making inquiry and returning it to the owner, if the latter is found, as was said concerning lost things.

221. 1. Obligations in the case of supervening doubtful faith.

The possessor, when a serious doubt has arisen, ought diligently to investigate the truth so that he may lay aside the doubt. For otherwise he exposes himself to the danger of retaining another's thing; indeed he also becomes a possessor in bad faith with the same obligations which were indicated in the preceding number. But after diligent inquiry has been made:

a) if it is morally established that the thing is another's, he ought to restore it as quickly as possible, according to what was said above concerning the possessor in good faith;

b) but if the doubt persists, he can retain the thing, because in doubt the condition of the possessor is better;⁶⁹

c) if the owner afterward appears, he ought to restore the thing if it still exists; otherwise he ought to restore that in which he has been made richer, unless nevertheless in the meantime legitimate prescription has procured true ownership for him. Generally he then has all the rights and all the obligations of a possessor in good faith;

d) if the possessor has a probable opinion in his favor and a more probable opinion against himself, he can still retain the thing for himself. The reason is that no one ought to be thrust from his possession unless it is morally certain that he is not the legitimate possessor. But in the case this moral certitude is not present.

⁶⁹ S. Alph., Theol. mor. l. 3, n. 511.

222. 2. Obligations in the case of antecedent doubtful faith.

a) He who, from a doubtful title, despoils a possessor in good faith of his thing sins against justice and is held to restore the thing seized to the former possessor.⁷⁰ The reason is that in doubt the condition of the possessor is better.

b) But he who did not despoil the possessor against his will, but received the thing by a title legitimate of itself (purchase, donation, inheritance, etc.) from a possessor of doubtful or suspect faith, is held to make diligent inquiry. But if, after such inquiry has been made, he remains uncertain, he is more probably held to restore in proportion to the doubt, and indeed to the probable owner if he can be found; otherwise he ought to distribute the thing received to the poor or to pious causes. The reason is that he cannot retain the whole, since he began possession with doubtful faith; yet neither ought he to restore the whole, because it is not equitable to oblige him to so great a loss when it is truly doubtful whether the thing possessed is another's. Thus theologians commonly after St. Alphonsus.⁷¹

The contrary opinion, however, which exempts the possessor even in this case from the obligation of restitution, is defended by Cardinal d'Annibale, and indeed with arguments not to be spurned.⁷² Hence, e.g., if someone buys some thing concerning which he greatly doubts whether it can legitimately be sold by the seller, he indeed sins; but if afterward, inquiry having been made, the doubt remains, he ought indeed to be admonished, but not compelled, to restore the whole or a part.

c) He who received a thing or right (e.g., an inheritance) from a possessor in good faith and began to possess with doubt can, while the doubt remains, protect himself by the right of his predecessor; namely, he can possess in good faith and therefore is held to nothing until the contrary is certainly proved.

⁷⁰ Cf. Billuart, De iure et iust. diss. 8, a. 9, § 5.

⁷¹ Theol. mor. l. 3, n. 625.

⁷² Summula Theol. mor. II, n. 121.

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.

A possessor of doubtful faith is he who, moved by some probable reason, doubts concerning the certainty of his right to possess, whether that doubt began with the possession itself or in its course.

I say. A possessor of doubtful faith, whether he doubted from the beginning or only in the course of possession, is held seriously to inquire, so that he may lay aside the doubt; for otherwise he exposes himself to the danger of retaining another's thing from culpable negligence. But if, after diligent inquiry has been made, the doubt perseveres, he can retain the whole thing, provided that before the doubt arose he possessed in good faith. The reason is that possession begun with good faith creates of itself a very great presumption concerning the justice of the possession and attributes a certain right to the possessor, which, unless it is overcome by other stronger reasons or presumptions, must prevail both in the internal and in the external forum. - But if the doubt preceded the possession, one must inspect by what title he began to possess. For if in doubt he began to possess by despoiling another of his possession, and the doubt afterward perseveres, he is held to restore the whole thing to the former possessor, when it is not clear that this former possessor began to possess the thing in bad faith; because the reason which recently favored him is now turned back against him. But if he received the thing by another title, for example, of purchase, and after diligent examination the doubt still perseveres whether the one from whom he received it is its owner, he must restore, according to the proportion of the doubt, to the probable owner, or to the poor if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor otherwise does he seem held to restoring the whole, since he doubts whether the thing is another's and not his own. - Cf. St. Alphonsus, n. 625. - Lugo, disp. 17, nn. 80 and 86. - Lacroix, n. 568. - Carrière, nn. 1094 and seq.

This "doctrine as to the obligation of returning a thing begun to be possessed in doubtful faith, when by diligence the doubt is not overcome and laid aside, some probably limit so that it does not have place when someone in doubtful faith accepted the thing by title of purchase or another similar title from a possessor of good faith; for then he neither sins nor is held to restore, if, after diligence has been applied, the doubt still perseveres, because then he succeeds to the right which that possessor of good faith enjoyed, who transferred to him the whole right which he had. But he himself had the right of retaining the entire thing because of possession in good faith; therefore the second also will be able to retain as successor of the first, however much he himself doubts." Lugo, ibid., n. 83.

Indeed, even if someone accepted by title of purchase, etc., from another concerning whom it is doubted whether he is the owner of that thing, Bucceroni judges that he seems to be held to nothing: "for then this man can form his conscience from reflex principles: no one is bad unless he is proved, etc., nor otherwise can a certain obligation be imposed which certainly is not clear." - Bucceroni, n. 1327.

Question 1. To what is he held who accepted some thing in bad faith, thinking the thing to be another's, and afterward doubts whether the thing is his or not?

Resp. He is to be equated with him who began possession with doubtful faith; for the prior estimation is found to be false, and therefore is not to be attended to in the solution of the case. Therefore weigh whether by his possession he has despoiled another or not, and resolve according to the things which were just said.

Question 2. To what is a possessor of doubtful faith held if he has neglected to inquire and the owner appears?

Resp. Generally, after the beginning of the doubt, he is to be treated as a possessor of bad faith; therefore he must be obligated not only to returning the thing to the owner, but also to making good all damages to him. Nevertheless he seems to be excepted who began possession in good faith and then, after doubt had arisen, neglected to inquire, thinking that the owner could be found only with greater difficulty; for this man would be equated with a possessor of good faith. Cf. Lessius, lib. 2, cap. 14, n. 24. - Carrière, n. 1088.

Question 3. Whether a possessor of doubtful faith, who began to possess in good faith, is held to restitution if, after inquiry has been made, he finds that the thing is more probably another's?

Resp. Negatively, because from certain possession there arises a morally certain right. Besides, until another has proved his certain right, the axiom has force: The condition of the possessor is better. - Cf. St. Alphonsus, de conscientia dubia, n. 35.

Question 4. What must be said if the doubt is not concerning the title, but whether someone began possession in good or bad faith?

Resp. Favor must be shown to the possessor, because offenses are not presumed but must be proved. Nevertheless, if someone is found actually in bad faith, and it is doubted whether he began to possess with this bad faith, it must be presumed that he was of bad faith from the beginning, because once bad, he is always presumed to be bad, according to the 8th rule of law in 6. - Cf. Lacroix, n. 567. - Lugo, disp. 18, n. 16.

A certain man of a sufficiently disreputable appearance knocked at the door of a certain presbytery and offered Titius the priest a hare together with a large salmon for a few shillings. Titius gravely suspected that the things were stolen; nevertheless, since the next day was Holy Saturday and the following Sunday was Easter Sunday, he thought that the opportunity was not to be despised and bought them. After a few days he found with certainty that the things had been stolen, and consequently he is troubled by a scruple concerning the purchase made and whether any obligation rests upon him. Hence it is asked:

1. What are the obligations of a possessor in doubtful faith?

2. What would the obligations of Titius be if he had bought the said things in open market?

3. What is to be said of the case?

1. What are the obligations of a possessor in doubtful faith?

One who deprives another of the possession of something without being certain that it is his must make restitution, for he injured the possessor's rights. If he obtained possession in good faith, and afterwards began to doubt about his right of possession, he must make inquiries as to the true owner, and abide by the result. If, after inquiry, the doubt remains, he may retain possession. If he obtained possession in doubtful faith, and after inquiry the doubt remains, he must make restitution of part, according to the quality of the doubt, according to the common opinion. D’Annibale and Bucceroni think that even in this case possession of the whole may be retained with the intention of making restitution to the true owner if and when he appears.

2. What would be the obligations of Titius if he had bought the objects mentioned in the case in open market?

If he had bought them in open market in good faith, he would have acquired ownership of the goods, as the law in that case gives a valid title to the property thus bought.

3. The case. Titius did wrong in buying the hare and salmon while in doubt whether the seller had the right to sell, and in afterward eating them in the same state of doubt. He knowingly exposed himself to the danger of consuming what belonged to some one else and sinned against justice. When afterward he found out for certain that they were stolen, he became obliged to make restitution to the true owner, for having unwarrantably consumed his property. If he had bought and consumed the goods in good faith, he would have been bound to nothing.