First Root of Restitution

437. A possessor in good faith is said to be one who invincibly does not know that the thing possessed by him belongs to another. The obligations of a possessor in good faith are referred: a. to the thing itself; b. to the fruits received from it; c. to the expenses made for it.

Obligations by reason of the thing. In general a possessor in good faith must restore only as much as he still possesses of another's thing, but he is not bound to repair the damages which the owner has suffered, because they occurred to the owner without his fault. Now, in order that the obligations of the possessor in good faith by reason of the thing may be determined in particular, three different hypotheses must be distinguished: a. if he still possesses the thing; b. if the thing has perished; c. if another possesses the thing.

438. If he still possesses another's thing, 1. he is bound of itself to restore it to the owner, if he is known, as soon as possible, unless meanwhile the thing has been prescribed; because a thing cries out for its owner.

a. If he possesses the thing not in whole but only in part, he must restore the part which he holds. If meanwhile the thing has become worse, and indeed without the profit of the possessor, he must restore it in the state in which it now is, even if from the fault of the possessor it has become worse; if it has become worse with the profit of the possessor, he must also restore the profit by which he has become richer. If meanwhile the thing has been made better, he must restore the thing as it is, unless it is mixed with others so that it cannot be separated: for in this case the possessor receives ownership of the other's thing if, in the mixture, his own thing is principal; but he must restore that by which he has become richer. But if he must restore the better thing itself, he can deduct the expenses of improvement.¹

b. If he culpably delays restitution, he is bound to compensate the damages which arise from the delay of restitution: for if he knowingly retains another's thing, he becomes a possessor in bad faith and is bound concerning the damages.

c. If the owner is unknown and there is no hope of finding the owner, the possessor in good faith can retain another's thing for himself: for the thing is held as abandoned; therefore the possessor acquires ownership of it by right of occupation.

d. Unless it has been prescribed: for in the possessor in good faith the conditions required for prescribing can be present; when these truly exist and are completed, he can retain the thing for himself.

2. But it is not necessary that he always restore the thing to the owner himself; sometimes he can return it to the one from whom he received it: for one must distinguish whether he received the thing gratuitously or by an onerous title.

a. If he received the thing gratuitously, it is not permitted to return it to the donor or thief, but it must be restored to the owner himself: for the thing cries out for its owner.

b. If he bought the thing and the owner appears to vindicate the thing to himself (in the case of eviction), he is bound to return it to the owner, even with loss of the price: for the owner can vindicate his own thing to himself wherever he finds it, since he has a right in the thing. Yet the possessor has recourse to the seller; but if he cannot recover the price from the seller, he must consider the loss of it as a misfortune and bear it patiently.²

c. If the owner does not appear (outside the case of eviction), that is, if the owner indeed is known but is unaware of the thing, it is permitted to the possessor to return the thing to him from whom he received it, in order to recover the price given by himself, unless by another way he can render both himself and the owner unharmed. If he cannot recover the price, he must bear the loss of it.

alpha. For this opinion a twofold reason can be adduced: he who returns the thing to the thief and places it back in the state in which it was before, on the one side indeed inflicts no damage directly on the owner, and on the other side is not bound to preserve the thing for the owner with his own damage; thus a finder too would licitly replace the thing found, which he could not preserve without his own damage, in the place where he had found it. Next, all the conditions are present which are required so that this action can licitly be placed for recovering one's own goods, although from it damage to the neighbor is foreseen to follow indirectly. And indeed the action, namely the rescission of the contract, is licit in itself; the end which is intended, namely to keep oneself unharmed, is upright and follows immediately from the action; finally there is a proportionately grave cause for permitting the damage of the neighbor, namely to prevent one's own damage equal to the neighbor's damage.³ Ordinarily indeed there will be no other means for the buyer of recovering the price given, unless he returns the purchased thing to the thief; but if another existed, he would be bound to use it: for he would act against justice by again exposing to danger, without just cause, the owner's thing already placed in safety.

beta. More recent laws sometimes establish that the owner cannot recover his own thing from a possessor in good faith, who bought it or received it by another onerous title, unless its price has been paid, when he bought the thing at a fair, or at auction, or from a merchant who usually sells things of the same kind.⁴ Concerning a disposition of law of this kind one must first investigate whether the mind of the legislator is only to deny the owner a civil action in recovering his own thing unless he pays its price, or whether his mind is to transfer ownership in the possessed thing. If the latter, it is asked whether this disposition of law has value in conscience. Most authors indeed probably affirm this question, because the civil power so establishes by reason of the common good, namely that commerce among men may be rendered easier and possession more secure; but this reason of common good seems sufficient for the civil authority to be able to use its power of transferring ownership.

¹ Cf. Ballerini-Palmieri III, n. 416 s.

² Lugo, disp. 17, n. 1.

³ Cf. St. Alphonsus, n. 569.

⁴ A.C. Sections 367, 368. G.A. commerc. Sections 306-308.

439. If another's thing has perished, one must distinguish whether it perished with the possessor in good faith himself or with another; and in this latter case, whether the possessor in good faith handed the thing over to another without profit or with profit.

1. If the thing perished with the possessor in good faith, whether he consumed it, lost it, or destroyed it, he is bound to nothing unless he has become richer from it; but if from it he did become richer, he must restore to the owner that in which he has become richer. The reason for the first is that one who consumes or destroys a thing which he thought was his own inflicted injury on no one, even if deliberately and by his own fault he had lost it. In this case the owner must consider the loss of the thing as his own misfortune and patiently tolerate it. The reason for the second is that that in which he has become richer constitutes the equivalent of the thing, which pertains to the owner.

a. The equivalent of a thing is called that into which someone has become richer from that thing. Someone becomes richer from another's thing insofar as from it he has something which otherwise he would not have had; and this can happen in two ways: either because from a thing received gratuitously he has fruits, or because he spares his own thing while he uses another's, as when someone spares his own calf while he eats the flesh of another's.

b. What is said of a thing consumed also holds for a thing made worse: namely, if the owner has made the thing worse by applying it to his own uses, he must restore that in which by this reason he has become richer. Therefore he who in good faith wore a garment belonging to another, received as a gift, and nearly wore it out, is bound, if the owner becomes known, to restore the garment and in addition to pay as much as otherwise he would have worn out of his own garment.

2. If the thing perished with another, diverse hypotheses are to be distinguished.

a. If he donated to another a thing belonging to another, received gratuitously, when otherwise he was going to donate nothing, he is bound to nothing, because he did not become richer; but if in place of that thing he would have donated his own, he is bound to restore the price of this, because by this he has become richer.

b. If he sold to another a thing belonging to another, received gratuitously, he can, as it seems, retain the price of the thing, because it is not certain that it must be returned either to the owner or to the buyer.

Authors bring forth three different opinions about this matter:

alpha. Some (Carriere, D'Annibale) judge that the price must be restored to the buyer, because the sale of another's thing is null, and therefore the seller does not acquire ownership of the price, or at least the buyer has a right of recovering his money. But this is true only in the case of eviction, which does not occur here; outside the case of eviction, the seller in good faith acquires ownership of the price of the thing sold.

beta. Others think that the whole price must be returned to the owner, because the possessor in good faith has truly become richer by that whole price. Moreover by returning the price he suffers no damage; on the contrary, the owner unjustly despoiled of his thing is forced to undergo the whole damage; but there is no reason why the owner should suffer the damage rather than the possessor in good faith be deprived of profit received from another's thing. This opinion, which among more recent authors Gury and Lehmkuhl defend, is called common. But the owner, who always retains ownership in his own thing, has no other right except against the actual possessor of the thing and against the thief; but if he can no longer pursue this right, that is his misfortune.

gamma. Finally others think that the price can be retained by the possessor in good faith, because no one has a right to demand it: not the buyer, because outside the case of eviction the seller acquires full ownership in the price of the thing sold; not the owner, because the thing naturally perishes for him. Nor can it be said that the price is the equivalent of the thing to be returned to the owner: for since the seller acquired ownership in the price of the thing sold, this is not the equivalent of the thing sold, or the seller no longer has another's thing equivalently. Finally the seller did not become unjustly richer from another's thing: for he became richer on the occasion of another's thing, and not unjustly, because by selling a thing which he thought was his own, he injured no one. Among more recent authors Bucceroni defends this opinion, and Genicot accedes to it.¹

c. If he donated to another a purchased thing belonging to another, he is bound to nothing, even if otherwise he would have donated his own thing, because he has become richer in no thing.

d. If he sold to another a purchased thing belonging to another without profit, he is bound to nothing, because he did not become richer.

e. If he sold to another a purchased thing belonging to another with profit, he can retain the price of the thing and the profit received from its sale: for the price of the thing does not pertain to the owner, and the profit is from the occasion of another's thing or from the industry of the seller, unless the thing has grown in itself; in which case the profit belongs to the owner.

But if after the destruction of the thing its owner is detected, who claims the thing for himself, since the thing perishes for the owner, he has no other right except that of receiving from the thief the price of the thing.

¹ Bucceroni, Institutiones th. m. I, n. 1341.

440. If the thing is found with another, again diverse hypotheses must be distinguished.

a. If he donated to another a thing belonging to another, received gratuitously, when otherwise he was going to donate nothing, he is bound to nothing, because he has not become richer; but if in place of that thing he would have donated his own, he is bound to restore the price of this, because by this he has become richer.

b. If he sold to another a thing belonging to another, received gratuitously, one must distinguish: if the owner appears and vindicates his own thing to himself (in the case of eviction), or if the buyer spontaneously restores the thing, he is bound to return the price to the buyer, because in the contract of sale he implicitly obligated himself to this. If the owner does not appear and the buyer cannot recover his own thing (outside the case of eviction), according to the opinion of some, which seems probable, he is bound to nothing (n. 439, 2b).

c. If he donated to another a purchased thing belonging to another, he is bound to nothing, even if otherwise he would have donated his own thing: for he has become richer in nothing.

d. If he sold to another a purchased thing belonging to another, one must distinguish: if the owner appears and vindicates the thing to himself (in the case of eviction), or if the buyer spontaneously restores it, the seller in good faith must return the price to the buyer, because the contract of sale always implicitly includes this condition; yet he himself has recourse to his seller from whom he had bought the thing belonging to another. But if the owner does not appear (outside the case of eviction) and the buyer does not spontaneously restore it, the seller in good faith is bound to nothing: for he no longer has the thing, and what he himself received by selling, he spent by buying.

There are indeed some who oblige the seller in good faith to return the price either to the owner or to the buyer, because the seller has no title of retaining the price, since the sale of another's thing is invalid. But by a sale of another's thing made in good faith the seller acquires ownership of the price, except in the case of eviction, in which he is bound to return the price to the buyer.¹

e. If he sold to another a purchased thing belonging to another for a dearer price: alpha. he is bound to return the excess of the price to the owner if he received it because the thing grew in itself, for example, a young animal grew up; beta. he can retain the excess of the price for himself, both if he received it from special industry and if he received it by the simple sale of the thing, because it is the fruit of industry received on the occasion of another's thing.

As to the obligation of warning the owner of the thing, which a possessor in good faith has when he has handed over another's thing to another, so that the owner may be able to recover his own thing, one must distinguish: a. If he donated to another a thing belonging to another, whether received gratuitously or bought, from charity he must warn either the possessor of another's thing that he restore it, or the owner of the thing that he recover it, provided, however, that he can warn without grave inconvenience. b. But if he sold to another a purchased thing belonging to another, he is not bound to warn the buyer that the thing belongs to another, nor the owner where his thing is, if he himself cannot recover the price from the thief from whom he bought the thing: for he is not bound, with his own great detriment, to take care that the owner receive his own thing.

¹ Cf. Bucceroni, Institutiones th. m. I, n. 1339.

441. Obligations by reason of the fruits. He is bound to restore natural, civil, and mixed fruits insofar as they are fruits of the thing, even if the owner would not have received those fruits, because the thing bears fruit for the owner; but he is not bound to restore:

1. fruits of industry, because they are not fruits of the thing, but of him by whose labor they were acquired;

2. nor fruits which he did not receive from another's thing, which nevertheless the owner would have received if the thing had remained in his power, because he neither became richer from it nor unjustly inflicted damage on the owner;

3. nor fruits of the thing which he has made his own by prescription.

a. Therefore he who leased another's beast of burden to another for a price must return this price to the owner, even if the owner himself would never have leased the beast of burden: for civil fruits are fruits of the thing. But he who, by trading, acquired riches for himself from another's money is bound to restore none of these to the owner of the money. Likewise he who sold another's wheat for a dearer price satisfies by restoring similar wheat.

b. The fruits of the last three years, which still exist and which have been consumed insofar as the possessor has become richer from them, must be restored by natural law; but the other fruits of prior years have already been prescribed.¹

alpha. Modern laws generally grant to the possessor in good faith all fruits already received.² If by this disposition of law the legislator intends only to deny to the owner of the thing a civil action in recovering the fruits, it is clear that the possessor is bound in conscience to return the fruits to the owner of the thing. But if the legislator intends to transfer ownership itself in the fruits received to the possessor in good faith, authors now commonly teach as at least probable the opinion that the possessor in good faith can licitly retain the fruits for himself: for the disposition of the law is founded in the common good, namely that by it innumerable difficulties and suits may be forestalled.

beta. What is here established from modern laws about fruits still formally existing holds a fortiori concerning fruits virtually, or only in the equivalent, existing, namely from whose use and consumption the possessor has become richer. Indeed, already from the old laws several theologians denied the obligation of restoring fruits existing only equivalently.³

¹ On the prescription of fruits these things must be noted: a. fruits, as movable things, are prescribed, for example, by a three-year period. Hence if the fruitful thing itself is movable, such as animals, the fruits and the thing which produced them are prescribed at the same time. But if the fruitful thing is immovable, such as fields and trees, the fruits received from it can be prescribed long before the fruitful thing itself is prescribed. b. If the fruitful thing itself has been prescribed, by that very fact the fruits too, not only pending but also received, have been prescribed, even if the time which would be required for prescribing the fruits, if they themselves had to be prescribed independently of the fruitful thing, has not yet elapsed. Thus he who prescribes a field has also prescribed with it the fruits of the last three years.

² Thus also G.A. Section 330; not likewise G.G. 988.

³ Cf. Holzmann, Theologia moralis, t. 4, n. 367 ss.

442. Obligations by reason of expenses. He can deduct necessary and useful expenses: otherwise the owner would receive more than is his own; but for voluptuary expenses he can reclaim nothing, unless they increase the common value of the thing; yet he can remove the improvements if this can be done without detriment to the thing.

1. Necessary expenses are called those without which the thing would perish or would bear no fruits or worse fruits; expenses of this sort are those which are made, for example, in repairing a house, in clearing or fertilizing a field. Useful expenses are those which are made so that the thing becomes more apt for common uses, or bears more fruits, as planting new trees. Voluptuary expenses are those which are made for adornment and pleasure and do not increase the thing or its fruits, such as expenses for paintings, statues, gardens, etc.

2. Under the name of expenses also comes the valuation of the labor and industry of the possessor himself: for he is not obligated to labor gratuitously for the advantage of the owner.

443. A possessor in bad faith is said to be one who unjustly retains a thing which he knows belongs to another. His obligations are referred: a. to the thing itself; b. to its fruits; c. to expenses; d. to loss of profit and emergent damage.

Obligations by reason of the thing. In general a possessor in bad faith, besides another's thing or its equivalent price, must restore only as much as is the damage which followed for the owner from the unjust taking away of the thing, or as much as the owner would have if the thing had not been taken away from him. In order that the obligations of a possessor in bad faith may be determined in particular, again diverse hypotheses must be distinguished.

444. 1. If he still possesses another's thing, he must restore it to the owner as soon as possible: for the thing cries out for its owner.

a. Indeed he must restore the very thing taken away, not another in its place: for the owner has a right to his own thing itself, unless the circumstances are such that the owner cannot reasonably be unwilling if the equivalent price of the thing is restored, as if the thief could not return the thing itself without infamy.

b. Probably even a possessor in bad faith can return a purchased thing to the seller (thief) in order to recover the price given, because by returning it nothing is done which appears illicit: for the thing is placed back in the same state in which it was before, and therefore no damage is inflicted on the owner; nor is the possessor bound, with his own grave detriment, to take care that the owner receive his own thing¹ (n. 438, 2).

2. If he no longer possesses the thing, whether it still exists or does not exist, and in this case, whether it perished with fault or without his (the thief's) fault, he is bound to restore its price, even if from this he has not become richer: for he must render the injured owner unharmed; with two cases excepted, however: a. if the thing perished from an internal defect; b. if it perished from a cause (for example, fire) because of which it would also have equally perished with the owner, because in neither case is the theft the efficacious cause of the damage, since the thing would have perished even without the theft.

a. If the possessor in bad faith sold the thing to another and the owner appears and vindicates the thing to himself (in the case of eviction), the distinction which intervenes in this case between a possessor in good faith and one in bad faith must be noted. Namely, if the buyer knew that the thing bought by him belonged to another, the seller or prior possessor in bad faith is not bound to restore to him the price which he had received: for the condition which otherwise is supposed in a sale, namely unless the thing belongs to another and is vindicated by the owner, has no place in this case unless it was expressly otherwise provided, because no injury is done to the buyer, as one knowing the thing to belong to another.²

b. If the thing which perished in whatever way with the possessor in bad faith would have perished with the owner at the same time from another cause, several authors probably teach that the thief is bound to nothing, because the owner suffers no damage from the theft.³ But if the thing would have perished with the owner from the injustice of another, the thief is bound to restore its price, because the owner suffers damage from the theft: for if the thing had not been taken away, others (the thieves) would have contracted the burden of restoring.

¹ Cf. Lugo, disp. 17, n. 37, with whom St. Alphonsus agrees, n. 570.

² C.A. Section 929. C.G. Section 434.

³ Lacroix, l. 3, pr. 2, n. 218; D'Annibale, Summula theologiae moralis^5 (Rome: Desclee, 1908), II, n. 420; St. Alphonsus, l. 3, n. 620.

445. To what is a possessor in bad faith bound, if the thing which he took would otherwise have perished with the owner?

a. He must restore the thing to the owner, whether the possessor rescued it from the danger itself or whether the thing escaped the danger because it had already been taken away: for a thing rescued from danger or saved from danger does not cease to belong to the owner, and therefore cries out for the owner. Yet he can deduct both expenses made for the thing and the price of the labor which he applied in saving the thing.

b. He is not bound to restore the thing to the owner if he consumes it in the very danger, that is, morally at the time and place in which it would have perished with the owner: for a thing not freed from danger, but certainly going to perish, is of no value for the owner.

A thing is considered to be consumed in the very danger even when it is consumed where the danger in which the thing is certainly going to perish is now foreseen as imminent; thus he who foresees that tomorrow the house of Titius is certainly going to perish by fire is not bound to restitution if with others he consumes a cask of wine which could not have been rescued from the fire: for in these circumstances the thing is worth nothing for the owner, and therefore he is not reasonably unwilling concerning its destruction.

446. To what is a possessor in bad faith bound, if the thing had various values during the time of unjust possession?

The change of value which a thing undergoes during the time of unjust possession can be internal or external. It is called internal if the thing becomes better or worse in itself, as if a calf grows up or an ox grows old; it is called external if the thing, while remaining unchanged in itself, receives diverse value from external circumstances, as if wine now has a greater price on account of scarcity, later a lower price on account of abundance.

1. In the case of internal change: a. If the thing has become better with the possessor in bad faith, it must be restored to the owner with the increase: for the thing grows for the owner, though the price of labor and industry is to be deducted. b. If the thing has become worse from a cause because of which it would not have become worse with the owner, it must be restored with the value of the decrease: otherwise the owner would suffer damage. c. If the thing has become worse from a cause because of which the same thing would also have happened with the owner, it suffices that the thing be restored in the state in which it is found.

2. In the case of external change: a. If the owner would have sold the thing at the time of the greater price, or if at that time he had to buy a similar thing for himself at the greater price, the possessor is bound to restore the greater value. b. If the owner would have sold the thing at the time of the lower price, it suffices if he restores the thing itself or its value which it had at the time of the theft.

In practice ordinarily restitution of the thing or of its price according to the value which it had at the time of the theft is not to be urged, because the circumstances mentioned above can either in no way or only with great inconvenience be known with certitude. But if those circumstances were certainly established, the possessor in bad faith would have to be compelled to repair the whole damage.

447. Obligations by reason of fruits. 1. He must restore the fruits of the thing, both natural and civil: a. those which he himself received, even if the owner would not have received them, whether they still exist or no longer exist; for the thing bears fruit for the owner; b. those which the owner would have received, even if he himself received none: for the whole damage which the owner suffered must be repaired.

2. He is not bound to restore fruits of industry: for what he acquires by his own industry is his.

He who exposes money taken away by theft to gambling can retain for himself the profit which he receives from it. A depositary who uses another's money entrusted to his keeping for trading indeed sins, because he is presumed to act against the will of the owner; but the profit which he acquires by trading, the money itself being safe, he makes his own.

Case. Trees which grow from small trees taken away by theft and planted in the land of the thief are to be considered as fruits of industry: for since a plant cannot grow unless it has driven roots in the land, the owner of the land is also owner of those things which grow in the land, even if they have been taken away by theft. Therefore he for whom trees have grown from small trees taken away by theft is not bound to return the trees themselves to the owner of the small trees, but it suffices that he render him unharmed, and indeed, if he would not have uprooted the small trees, by restoring the double price, and if he would have uprooted them, by restoring the simple price. The same must be said of hens which someone acquired from another's eggs placed under his hen; namely he is not bound to restore to the owner anything except the price of the eggs.¹

¹ Cf. Lehmkuhl, Casus consc. I, n. 654.

448. Obligation by reason of emergent damage and loss of profit. He must repair both loss of profit and emergent damage, provided he in some way foresaw it, at least in confused manner: for he must restore to equality, that is, so that the owner has as much as he would have if his thing had not been taken away. Thus if the owner would have sown grain taken away by theft, but because of the theft lacked a harvest, the emergent damage must be repaired to him.

If debts are not paid at their time, the profit which ceases for the creditor from this would in rigor have to be compensated; yet ordinarily late payers are not compelled to compensate these damages, because creditors rarely demand them and therefore are considered to remit them. I say ordinarily, because this cannot be applied to those rich men who delay beyond what is right the payment of those things which they owe to workers or small merchants and thus bring them great inconvenience and damage, which in conscience must certainly be compensated.

Whether interest also, or the interest of money, must be restored. Certainly it must be restored if the owner would have received interest from his money. But if the owner would have kept the money idle with himself, there are some who free him from the burden of restoring the interest received;¹ but undeservedly: for interest received from money is now to be referred to civil fruits arising from the thing itself; wherefore in rigor it must be restored to the owner himself, even if the owner would not have received interest.

¹ Cf. Gury, Compendium theol. mor. I, n. 649.

449. Obligation as to expenses. A possessor in bad faith can deduct both necessary and useful expenses which the owner would have had to make for preserving or increasing his own thing: otherwise the owner, besides the damage inflicted on him, would receive something; but he cannot deduct voluptuary expenses, yet he can retain them for himself if they are separable with the substance of the thing safe.

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.

THE first root of restitution is the possession of another person’s property without any just title. 'This possession may hitherto have been in good faith without any suspicion that the property belonged to somebody else, or it may have been in bad faith with the knowledge that someone else was the rightful owner, or in doubtful faith with doubts about the ownership. The obligations of the possessor of another’s property will be different in these three cases. We will treat of them in the three following sections:

When one discovers that he is in possession without any just title of what belongs to someone else, justice requires that he should restore it to the rightful owner, or at least give the owner warning so that he may remove it at his own expense. For justice requires that all should have their own, res clamat domino, and if one knowingly detains what belongs to another against the owner’s reasonable wish he commits the sin of theft.

If the possessor of another’s property consumed it while he was in good faith, and now when he finds out the truth, he neither has the property itself nor its equivalent, he is bound to nothing, res perit domino. The property no longer exists, and cannot be restored to its true owner; there was no fault committed by consuming what was supposed to belong to the consumer, so there is no obligation to make compensation to the owner for his loss. This is all the more true if the property was destroyed, or perished by accident, or in the ordinary course of nature.

If any natural or civil fruits, derived from the property of another, still remain after the possessor has found out that the property belonged to someone else, he must restore them to the owner of the property to whom they belong, for res fructificat domino, Fruits of his own industry acquired on occasion of his possession of the property of another, he may keep, for the labourer has a right to the fruit of his toil.

Mixed fruits, which are partly due to industry, partly to the natural or artificial fertility of the property, belong partly to the labourer, partly to the owner of the property, according to what the law may prescribe, or according to the estimate of a prudent man.

The foregoing rules tell us what has to be done when one discovers that he has possession of the property of another, or when such property has perished while in his possession, But suppose that while he was in good faith the possessor of another’s property, he sold it to someone else, and afterwards he finds out that it was not his to sell, what are his obligations in that case ¹ No general answer can be given to this question; it will be necessary to distinguish according to several possible hypotheses.

The sale may have taken place in market overt, and then though the seller could not give a valid title to the property, yet the law does so. The Sale of Goods Act, 1893, sec. 22, makes the following provision: “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.”

According to Indermaur, ‘‘ By sale in market overt is meant selling goods in open market as opposed to selling them privately. In the country the market-place or piece of ground set apart by custom for the sale of goods is in general the only open market there; but in London, and in other towns where so warranted by custom, a sale in an open shop of proper goods is equivalent to, and in fact amounts to, sale in market overt,””²

In spite, however, of sale in market overt, “‘ Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, “notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.’”” In this case on conviction of an offence which involves larceny, the court, if the accused has sold the property to an L: innocent purchaser, on restitution of the property to the owner, may order the price paid by the purchaser to be repaid to him out of any money found on the convict when arrested. This provision is in addition to that allowing compensation to a person injured by a felony.”³

If the sale did not take place in market overt, and the stolen property has not been restored to the true owner, the seller is bound to nothing in justice, according to a very probable opinion. For the property is no longer in his possession or under his control, so he cannot restore it to the owner; if he received money for it, he received it in good faith for value, and when he has mixed it with his other moneys it would seem that he makes it his own.⁴ It would seem that this is in accordance with English law: ‘‘ A mesne possessor acquiring the goods innocently from the thief, and reselling before conviction, is under no obligation in trover to the original owner.”⁵

It was said above that the seller is bound to nothing in justice, but if without relatively serious inconvenience to himself he can, by giving the requisite information, procure the restoration of the property to its rightful owner, he will be bound to do this out of charity.

If the property was not sold in market overt, and if it has been restored to the rightful owner, the purchaser can demand back the purchase money from the seller, rescinding the contract for failure of warranty which is implied in every such sale: ‘“‘ In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is: (1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass; (2) an implied warranty that the buyer shall have and enjoy quiet possession of the goods.’”⁶ These solutions would seem to be tenable whether the mesne possessor obtained the property in good faith by purchase or by gift, and whether he gained anything or not by selling it. For although one who possesses another’s property either in itself or in its equivalent is bound to make restitution to the owner, a mesne possessor who has sold it in good faith to another no longer possesses it even in its equivalent, for the price after being mixed with his own moneys is not its equivalent; and although he is the richer by the transaction, yet it cannot be said that he is the richer unjustly, and so he is not bound to restitution.⁷

It is a disputed point among theologians whether a purchaser in good faith from a thief of stolen goods, on finding out that the goods were stolen, may return them to the seller if he cannot otherwise get back his money. It would seem that in conscience he may do so, for in so doing he does not wrong the rightful owner; he replaces the goods where he found them, so to say, and they are in no worse a position through having been for a time in his possession. He is justified in leaving them there if he cannot otherwise save himself from loss.⁸ Such an action, however, might bring him into collision with the law of the country. In England it might amount to misprision of felony or be considered compounding a felony.

¹ Principles of the Common Law, p. 323, 6th ed.

² Sale of Goods Act, 1893, sec. 24.

³ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁴ Stephen, 2, p. 60.

⁵ Encyclopedia of Laws of England, s.v. Stolen Goods.

⁶ Sale of Goods Act, 1893, sec. 12.

⁷ Bucceroni, 1, n. 1341.

⁸ St Alphonsus, 3, n. 569.

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.””

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.

The possessor in good faith is bound as follows:

I. As regards the thing. 1. He who possesses another's thing¹ in itself is generally bound to return it as soon as possible to the owner, and indeed gratis. The thing, as the adage has it, cries out for its owner. I said generally; for one who bought a thing from another, for instance from a thief, can sufficiently probably return it even to the thief in order to recover the price, unless the owner, appearing, now claims his own thing for himself. The reason is that the buyer is not the cause but only the occasion of the damage that will follow for the owner; the cause of the damage is the bad will of the thief, while the buyer permits the damage. But avoiding the buyer's own damage, in this case recovering the price, is a just cause for permitting another's damage (St. Alphonsus, III, 569). If, however, the possessor can recover the price by another likewise easy way, he is bound to return the thing to the owner, since the cause for handing it over to the thief is lacking (St. Alphonsus, III, 569).

If the owner, appearing, claims his own thing for himself, the possessor can demand back from the seller the price paid by him. For the rest, let it also be seen what perhaps the law of the country establishes, for example concerning another's thing bought in public markets or in a public auction.

2. He who no longer possesses another's thing in itself, but in equivalent, is bound thus:

a) He who sold another's thing received gratuitously is bound to restore the price to the buyer, but the latter is bound to return the thing to the owner. But if the buyer refuses to return the thing, or it is foreseen that he will not return it, let the seller return the price to the owner of the thing insofar as it does not correspond to mere industry, and thus, insofar as can now be done, repair the equality violated also by himself, although without fault (St. Alphonsus, III, 609).

b) He who donated another's thing received gratuitously, and thus spared his own goods, is bound to warn the donee, who should restore the thing to the owner. But if he refuses to restore it, the donor is bound to restitution with respect to the owner; for he cannot become richer, to the owner's damage, from disposing of another's thing.

c) He who consumed another's thing received gratuitously, and thus spared his own goods, is likewise bound to restitution with respect to the owner, because, as was just said, he cannot become richer, to the owner's damage, from disposing of another's thing.

Both the donor, of whom under b), and the one who consumed another's thing, of whom under c), are bound to restore according to the value of his own thing preserved, if this is worth less than the other thing donated or consumed; but according to the value of the other thing donated or consumed, if his own thing preserved is worth more than the other thing donated or consumed. The reason for the former is that they are not bound to restore beyond what they spared of their own goods. The reason for the latter is that they are not bound to restore beyond the damage which the owner suffered.

d) He who sold at a profit another's thing which he had bought is bound per se to return the price to the buyer, while the latter must restore the thing to the owner (St. Alphonsus, III, 800). But if the buyer refuses to restore the thing to the owner, let the seller give to the owner the profit insofar as it does not correspond to industry (St. Alphonsus, III, 601; 609, 6; 825, compared with 609, 8 and 610). Of him who sold another's thing which he had bought without profit, there is no discussion here, because he has not been made richer from another's thing.

3. He who no longer possesses another's thing either in itself or in equivalent is not bound, as far as the thing is concerned, to restitution; for he is an inculpable damager (n. 995). The same must be said of him who doubts whether he in some way possesses another's thing (St. Alphonsus, III, 706).

¹ Note, a thing legitimately prescribed is no longer another's.

II. As regards the fruits of the thing, the possessor in good faith:

1. With attention paid to the law of nature, is bound to restore natural, civil, and mixed fruits, while nevertheless retaining the price of the labor furnished for producing them; he can retain merely industrial fruits. The reason is that the former arise from the thing itself, the latter from the labor of the possessor (St. Alphonsus, III, 607, 610).

2. As regards civil law, which commonly has force in conscience, see the Code of the country.

III. As regards expenses made, the possessor in good faith can deduct:

1. With attention paid to the law of nature: 1° necessary expenses, or those without which the thing would have perished or become worse; 2° useful expenses, or those by which the thing was improved; 3° voluptuary expenses, that is, those which serve only ornament or pleasure, insofar as the value of the thing has been increased by them; nevertheless the possessor can remove the ornaments, provided this is done without detriment to the thing; 4° expenses made for producing fruits which are not merely industrial,¹ or which he restores.²

2. As regards civil law, let the law of the country be consulted.

¹ Since he can retain merely industrial fruits, he himself must also bear the expenses.

² Of course he is not bound both to restore the fruits and besides to bear the expenses made.

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.

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.

634. • General Principle. The owner alone of a thing has of himself the right of possessing it, nor does he lose the dominion of the thing, into whosever hands at last it may come. - It is said, of himself, because any other possessor, even of good faith, has the right of possessing the thing only by accident and from invincible error. - Thus all laws establish. - But from this general principle these four very well-known axioms flow of themselves, which will recur very often in the course of this treatment, namely:

1. The thing cries to its owner, that is, the strict right of recovering his thing belongs to the owner wherever he may find it.

2. The thing fructifies for the owner, because use and enjoyment are necessarily included in the idea of perfect dominion.

3. The thing naturally perishes for the owner, because when the object of dominion fails, dominion itself also vanishes. Yet if it still exists in an equivalent, that equivalent belongs to the owner.

4. No one ought to be unjustly enriched from the thing of another; or in other words: The measure of restitution is the quantity of another's thing detained without cause. The reason is plain; for it belongs to the owner alone of the thing to receive utility from the same.

But these principles, besides the fact that sometimes according to the diverse laws of places they receive a diverse application, are further modified according to the diverse condition of the possessor. For someone can possess another's thing either with good faith, or with bad faith, or with doubtful faith. Therefore one must speak: 1. of the possessor of good faith; 2. of the possessor of bad faith; 3. of the possessor of doubtful faith.

Whether there is an obligation of restitution from another's thing? It is undoubted that by reason of another's thing there is an obligation of restitution. For this is to restore: to set the owner again in possession of his own thing. Nor indeed is it considered by whom, or by what cause, or whether in good, bad, or doubtful faith, the thing is held. For these do not change the truth that the thing is another's. A possessor is in good, bad, or doubtful faith according as he invincibly does not know the thing to be another's and prudently judges it to be his own; or openly knows it to be another's; or doubts whether it is his own or another's. We shall speak of each gradually and specifically. St. Thomas, 2. 2, q. 62, aa. 1, 6; C. A. 826; Inst. l. 4, t. 1, 2; E. M.

What of a possessor in good faith? A possessor in good faith, as soon as he knows the thing possessed to be another's, is bound to restore it, still extant, to the owner. The reason is that otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right.

If meanwhile by his negligence he has made another's thing worse, he is bound to no compensation of damage. If he has lost or destroyed another's thing, even by his negligence, he is held to nothing. "He who neglected the thing as though his own is subject to no complaint." L. 31 § 3, Dig. de Haered. petit.; C. He. 938; C. L. 494; L. 607; C. B. 985, 993.

Note: A possessor in good faith can deduct all necessary expenses, indeed also useful expenses, namely those which preserve the thing and make it better; otherwise the owner would receive more than his own, namely if the thing is still better. He can also claim back voluptuary expenses in those same cases in which a possessor in bad faith can do this. For what is granted to a possessor in bad faith cannot be denied to a possessor in good faith. Cf. 1348. But among expenses are not to be computed fortuitous events, nor damages caused accidentally. Thus, e.g., if in cultivating another's field your horses perished, the value of the horses cannot be deducted, but only the estimation of the labor done by the horses for the cultivation of the field.

C. I. 502, 704, 1013, 1019; C. G. 856, 861; C. B. 994 ff.; C. A. 331, 332; C. H. 454; C. L. 498, 500; C. He. 939; L. 1, 3, 5, 7, 14, de Impensis in res dotales factis Dig. If a possessor in good faith received the thing from him who had received the same from the person who owned that thing and believed himself to be debtor of the same thing, he is by no means bound to restitution, with recourse preserved for the owner against him to whom he himself had given it by error. C. I. 1146; C. G. 1377; C. B. 929, 932. If a possessor in good faith of a stolen or lost thing bought it at fairs, or in a market, or in a public sale, or from a merchant selling similar things, the owner cannot vindicate it for himself except within the time constituted by law and after the price has been paid. C. I. 708, 709; C. G. 2280. Cf. C. H. 464; C. A. 367; C. B. 935; C. He. 934.

Whether a possessor in good faith can retain the thing if, before the time required for prescription, he certainly discovers that the thing is another's, yet it is impossible to recognize the true owner of the thing, whether the thing is movable or immovable? If the matter concerns a movable thing, it seems that that possessor can retain the thing for himself, nor is he bound by obligation to give it, or the equivalent price, to the poor or to a pious work. For that thing can then be equated with a lost thing. Moreover, the finder of a lost thing can retain it for himself if, sufficient diligence having been employed, the owner does not appear, nor is there any hope that he can be found. If the matter concerns an immovable thing, the same seems to be said, for whether the thing possessed is movable or immovable is something material in the reason of justice. Wherefore if in that case a movable thing can be retained, an immovable thing also can be retained. Besides, the same reason can be made here as is made for a lost thing. For in that hypothesis, because the owner can no longer be found, the thing becomes no one's and is acquired by the first occupant. Finally, the possessor of this thing can indeed still retain the thing while waiting until the owner appears. For thus he better provides for the good of the owner himself than if he gives it either to the poor or to a pious work. Hence, if the owner ever appears before the time required for prescription of the longest time, he is bound to restore it to him. But if the owner appears after the time required for this prescription, then nothing seems to have to be restored to him. For this is admitted for the case of a lost thing; therefore also for the present case, which is equated with it. L. 589.

To what is a possessor in good faith bound who alienated the thing? A possessor in good faith who alienated or consumed the thing with profit, sparing his own, is bound, of himself, to restore this profit, insofar as he has been made richer from another's thing. The reason is that profit which is immediately from another's thing is equivalently that other thing itself. Therefore, just as a possessor in good faith is bound to restore another's thing formally existing, so he must restore the same thing equivalently existing. A possessor in good faith who alienated, lost, destroyed, or consumed the thing, although deliberately and with fault, but without any profit, is held to nothing. The reason is that the thing perishes to its owner, and it no longer exists either in itself or in an equivalent; and, as has already been said, "because he who neglected the thing as though his own is subject to no complaint." L. 31 § 3 ff. de Haered. petit. - Wherefore he is held to nothing if he gave away a thing accepted as a gift, or if he sold it, having bought it, for the same price. Gousset 929. - L. 607-609; C. A. 329; C. G. 1238; C. H. 457; C. L. 494; C. He. 938; C. I. 1240; cf. here 1338.

Whether a possessor in good faith must also restore fruits?

A possessor in good faith is in no way bound to restore industrial and mixed fruits, insofar as these correspond to industry. But as regards natural and mixed fruits, insofar as these correspond to the thing, by natural law he is bound to restore them. The reason is that the thing bears fruit for its owner. Therefore, just as the thing naturally bears fruit for its owner, so one's own industry and labor bears fruit for the one laboring. - L. 609, 610; Gousset 931.

What concerning the fruits of another's thing by positive law as regards a possessor in good faith? - According to Roman Law, natural fruits received and still existing must be restored, L. 22, de Rei vind. C. But there is controversy as regards fruits no longer extant or consumed. Yet nothing seems to have to be restored, although the possessor has become richer from them; for "he must profit, if he has consumed them." L. 4 § 2, Fin. regund. Nevertheless inheritance must be excepted, because this is singular in it, that fruits increase the inheritance. L. 9, Famil. ercisc. C.; L. 40, de Hered. petit. Dig. - Does the bad faith of the deceased harm the heir?

Certainly so, if the deceased possessed precariously, by commodatum, deposit, etc., because since the heir cannot change the cause of possession for himself, he truly does not possess; and thus "the fortune of an heir succeeding into the defect is also to be held equal." L. 2, de Fruct. et lit. expens. C. But if the deceased did not possess precariously, then the heir truly possesses, and is a possessor in good faith, and therefore makes the fruits his own. Inst. l. 2, t. 1, de Rer. divis. §§ 35, 36; Reiff. l. 2, t. 13, n. 134; Schmalzgr. l. 2, t. 13, n. 50 ff.

According to C. I. 701, 703; C. G. 549, 550; C. H. 451, 452; C. L. 495; C. He. 939; C. A. 330; C. B. 955, 987, 993, all fruits, whatever they may be, are assigned to the possessor in good faith, provided he possesses the thing itself as proprietor and from a title which by its nature can transfer ownership. But can this disposition of Law also have force in the forum of conscience? It must more probably be affirmed, because it can reasonably be presumed that such is the force of the law, since, understood thus, it promotes the public good much more and removes inextricable complaints and difficulties which would continually be raised concerning the quantity of fruits to be restored, etc. But that the force of the law is not only to deny action in the external forum, but truly to transfer ownership, as in the case of prescription, is plainly clear from its words; for it says: the possessor makes the fruits his own. Voet l. 5, t. 3; Carrière 1052, 1054; Vernier 564; Gousset 931, in a. 550; L. 619.

According to C. B. 988, 2020, an exception is to be made of the possessor in good faith who obtained the thing under a gratuitous title. For he is bound to restore the fruits received to the reclaiming proprietor. Likewise an exception is to be made of inheritance; for the possessor is bound to restore it to the heir with its fruits. Cf. here 1339, 1341. According to C. G. 1697, the seller of an inheritance is bound to include also the fruits received from it after the death of the testator. The same is had according to C. I. 1545. - Cf. here 1341.

To what is a possessor in good faith bound if he has given another's thing to another? If a possessor in good faith has given the thing to another, being otherwise about to give nothing of his own, he is bound to no restitution, as is established from n. 1335. But if otherwise he would have given something else equal or less, and he himself accepted the thing as a gift, he would be bound to restore that equal or lesser thing to the appearing owner who cannot recover his own thing, as is established from the same n. 1335. And he himself accepted the thing as a gift; for if he bought it, he would also be held to nothing according to the aforesaid n. 1335.

To what is a possessor in good faith bound if he has sold to another a thing bought from a thief? In the case of eviction, that is, if the owner vindicated his own thing from the buyer, the seller is bound to render the price to the buyer. The reason is that when eviction intervenes, the contract must be dissolved, and the buyer by that very fact acquires recourse against the seller, since by handing over the thing to the buyer he implicitly obliged himself to repair the damage if perhaps there would be future eviction. - The same, for the same reason, must be said in the case of spontaneous restitution made by the buyer. Of spontaneous restitution: with the exception of the case in which spontaneous restitution made by the buyer would be the cause why the seller afterward cannot recover the price from him who had sold him the thing; for then he is not bound to render the price, because the damage which he inflicted on the buyer by selling another's thing, that buyer in turn inflicted on him by accelerated restitution. C. I. 1497; C. G. 1640. - This same must be held if another's thing has passed into the hands of various possessors under onerous title. For if the last possessor is compelled to render the thing to the owner, both he and the individual buyers have the right of pursuing their own seller, so that they may recover the price paid. The first seller has recourse against the thief from whom he accepted the thing in good faith, judging it to be his own. For a possessor in good faith ought not suffer damage from another's bad faith. L. 601; Gousset 929.

Outside the case of eviction, or, according to some, also of spontaneous restitution on the part of the buyer, the matter is not without difficulty, and is sharply disputed. According to Roman Law, the seller is held to nothing, at least more probably, unless he was made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as altogether invalid. For although by it ownership of the thing is not transferred to the buyer, nevertheless ownership of the price is transferred to the seller. And this man, even if he later discovers that the thing sold is another's, nevertheless is not bound either to warn the owner so that he may be able to recover his own thing, or to indicate to the buyer that the thing is another's. Thus the more common opinion. Lugo d. 17, n. 106; Salm. c. 1, n. 88, etc., against Billuart a. 10 and others, who oblige the seller to render the price to the owner or buyer because, they say, the sale of another's thing is wholly invalid.

According to Italian and French Law, the difficulty grows, because the sale of another's thing is declared invalid. Therefore, they say, if the contract was plainly invalid, the buyer did not transfer ownership of the price to the seller, and therefore the seller has no right to preserve that price. Therefore the price seems to have to be refunded to the owner, if he cannot reclaim his own thing from the buyer. Thus Carrière 1047 with others. Yet others rightly contradict, whose opinion seems sufficiently probable. For it is not plainly established, even according to Italian and French Law, that the sale of another's thing has no effects at all. From C. I. 1459; C. G. 1599; C. H. 1474, these things merely can be deduced: 1. That the owner of the thing preserves his right in it. 2. That the buyer is subject to eviction. 3. That the seller in the case of eviction or restitution on the part of the buyer is obliged to restore the price to the buyer. Nothing beyond these can be deduced from the practice of tribunals. Moreover, what cause is there between the seller and the owner of the thing? What sort of recourse can the latter attribute to himself against the former? Namely, the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because that man does not have the thing. In addition, it would be very harsh that he who neither still has another's thing, nor has been made richer from it, be obliged to undergo so great an inconvenience voluntarily. Therefore to obtain his right, or the reparation of the violated right, the owner has recourse against the actual possessor of the thing indeed, or against the thief, but in no way against the others. Gousset 929; Gury 638; L. 608.

According to C. B. 932, the buyer of another's thing, if he acted in good faith and has possession of it by the delivery of the thing made to him, acquires ownership in the thing bought. According to C. A. 333, only this is had: that a possessor, even in good faith, cannot demand from the owner of the thing the price paid by him for the acquisition of that thing. But these things pertain nothing to the seller. And in a. 1336 it is said that from the general rule no one is bound to repair damage caused without his fault or involuntary action. But art. 931 holds the seller only by the obligation of preserving the buyer unharmed in the case of eviction. If another's thing has perished in the hands of the buyer, the possessor in good faith who first bought it and then sold it is held to nothing. For he is not held by reason of the thing, since he no longer has it; nor by reason of damage, since he is not the cause of its destruction, nor from another source has he cooperated in any way formally in the taking away of the thing. Gury 641; C. A. 329.

If someone in good faith bought another's thing for a moderate price and sold it for a greater price, whether he is bound to render the profit received to the owner? Resp. Negatively, if that profit is to be attributed to extraordinary industry, e.g., if he went to another place with notable labor so that he might find an opportune occasion of selling the thing more dearly, etc. The same must be said if the thing, during the time of detention, was made better by the care of the detainer. - Resp. Affirmatively, on the contrary, if the thing increased from its own nature or from the common estimation of men, but not from the industry of the detainer, because in that case it increases for the owner. Thus Gury 640. But cf. here 1337, 1339, 1341.

But if, apart from the three aforesaid cases, someone has bought a thing at the lowest price and resold it at the highest, some think he can retain what exceeds the lowest price, because that whole profit seems to be the fruit of the industry of the possessor. Some say he can retain what exceeds the middle price, because this alone can be held as the fruit of the industry of the possessor; some say the whole must be restored, because the just price of the thing belongs to the owner of the thing; finally some say that nothing must be restored: not the moderate price, because it corresponds to the price for which he himself bought the thing; not its excess, because he himself is the one who made this profit by his own industry, and it is only the fruit of his commerce and labor. Gousset 929, 930. Cf. here 1337, 1339, 1341. - Lugo d. 17, n. 20; Sanchez in Dec., l. 2, c. 23, n. 27; Gury 640.

To what is a possessor in good faith bound if he has sold to another another's thing accepted gratuitously? In the case of eviction, he is bound to repay the damage to the buyer, as in the preceding case. Cf. 1339. Outside the case of eviction, namely when the thing cannot be recovered by the owner, either because the last possessor consumed it, or because he no longer appears, the seller, according to the first opinion, must refund to the owner the whole price received from the buyer. The reason is that from that whole price he has truly been made richer, nor therefore does he suffer any loss on its occasion, while on the contrary the owner, unjustly despoiled of his own thing, is compelled to undergo the whole damage of the thing. Hence this owner must be kept unharmed from the profit which the seller received without any title. L. 608; Vogler 66.

The other opinion frees the seller from every obligation, because the owner can have no recourse against him, no otherwise than in the preceding case, since altogether the same reasons are valid, which it will help to weigh. Indeed, although the sale of another's thing is by that very fact null as regards transferring ownership of the thing, it is not nevertheless by that very fact null as regards acquiring ownership of the price. Therefore, excluding the case of eviction or spontaneous restitution, the seller is bound to nothing both toward the buyer and toward the owner. And indeed, if this reason is valid in the case in which a possessor in good faith bought the thing from a thief, cf. 1339, the same must also be valid in the case in which he received the thing gratuitously; for this gratuitous acceptance is altogether extrinsic to that contract of sale, nor therefore does it cause him not to acquire ownership of the price. Besides, the seller would have to restore the price either to the buyer or to the owner. But he does not have to restore it to the buyer, for the seller is bound toward the buyer by no other obligation except that of furnishing indemnity for eviction or even spontaneous restitution; but outside this case the buyer suffers no damage at all. But again neither does he have to restore the price to the owner, for the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because that man does not have the thing. Nor is it valid to say that, although he does not have the thing materially, nevertheless he has it formally in the price accepted for it; for in every contract of sale, since on one side ownership of the thing is transferred, while on the other ownership of the price is transferred, the price is no longer the merchandise sold, nor does it represent it; but it brings only the obligation for the seller of preserving the buyer unharmed in the case of eviction. And this appears more clearly in the sale of another's thing; for in it ownership of the merchandise is not transferred, yet ownership of the price is transferred; therefore the price, as being the seller's, is in no way the merchandise, which belongs neither to the seller nor to the buyer. "Nor can it be said," says Father Gury, Cas. 608, "that the price of the thing represents the thing itself." And D'Annibale, ed. 4, p. 2, n. 125: "This is not asked, if perhaps I bought a thing from another, whether I bought it with another's money, for instance stolen money; because the thing does not succeed into the place of the price; nor, if I have sold another's thing, does the price succeed into the place of the thing." Therefore the seller, not only if he bought the thing, but also if he received it gratuitously, after he has sold it, has it neither materially nor formally. The seller acquires ownership of the price of the thing sold, which consequently is in no way the equivalent of another's thing which he no longer has. The price of the thing is not substituted for the thing, nor does it in any way put on the nature of the thing. If the thing is immovable, the price of the thing always remains movable. Troplong, della Vendita, cap. 1, art. 1592, num. 162; cap. 5, art. 1653, n. 614.

In addition, the reason on account of which a seller who received the thing gratuitously would have to restore the price to the owner, if the last possessor of the thing does not appear or has consumed the thing, would be only this: because the seller has truly been made richer from that whole price, and therefore suffers no loss on its occasion; while on the contrary the owner of the thing, unjustly despoiled, is compelled to undergo the whole damage of the thing. But 1. it is one thing that someone is made richer from another's thing, another on the occasion of another's thing; one thing that someone is made richer unjustly from another's thing, another that someone becomes rich without any injury to another. Moreover, the seller indeed becomes rich on the occasion of another's thing, nor does he become rich unjustly; and this is not illicit. 2. That the owner alone should suffer damage in the case is accidental. For his legitimate right is no other than against the thief and against the actual possessor of his own thing. If he cannot pursue that right, it is altogether accidental.

Finally, in the case in which the seller, who received the thing gratuitously, sold it to another, and the thing perished in the hands of the buyer, those who oblige the seller to restitution do not agree among themselves: for some probably say that he must restore to the buyer, because the thing perished to the owner, and the buyer has the right to recover his own money since the sale was invalid; others probably say that he must restore to the owner, because, since the owner has been unjustly despoiled of his own thing, and the buyer has truly suffered no damage, equity requires that the owner be made unharmed. But if the right both of the owner and of the buyer is only probable, probably also the seller is held to nothing, and possession in fact prevails, according to the common rule. Gousset 930; Gury 639, 641. Therefore the owner of the thing has recourse only both against the actual possessor of it, if there is one, and against him who at the beginning unjustly accepted it. Gousset 980, 985.

Prescriptions of more recent Law: The heir of a depositary who in good faith sold the thing which he did not know was deposited is obliged either to restore the price received, or to cede his action against the buyer who has not yet paid him the price. C. H. 1778; C. I. 1851; C. G. 1935. - The apparent heir who in good faith alienated a thing of the inheritance must pay only the price, or cede the action for it not yet paid. C. I. 933. - Likewise, he who in good faith received a thing not owed to him and sold it must restore only the price of sale, C. G. 1380, or cede the action to obtain it, C. I. 1149; C. H. 1897. He will be able to retain the excess of the price for himself. C. I. 1149; C. G. 1380; Gousset 921 and in a. c. But he who has consumed the price without having been made richer thereby is held to nothing. Gousset, l.c. Cf. 1124. According to C. B. 816, if someone without right disposes of some object, whence some effect arises as regards its owner, he must restore to the latter that which he received by force of that disposition. - If the disposition was gratuitous, the same obligation falls upon him who by force of that disposition immediately acquires juridical advantage. - If a prestation is made to one not having right to it, whence effects arise as regards the one having the right, that one is bound to restore the prestation to him. 818. The obligation of restitution extends to produced fruits received and to everything which has been received by virtue of the acquired right, or under title of reparation because of destruction, deterioration, or taking away of the object to be restored. If restitution of the thing is not possible, its value is restored. The obligation of restitution of the thing or of its value ceases insofar as he who received the thing was not made richer thereby. - 822. He who gratuitously remits to a third party what he himself received, if he himself by virtue of this liberality is no longer bound to restitution of the thing by which he had been made richer, that third party is bound to restitution, since he did not juridically obtain that liberality. - 988. A possessor as owner of another's thing, under gratuitous title, is bound toward the true owner of it to restitution of the fruits received, even before they are demanded.

Whether a possessor in good faith, after a sale or donation has been made of another's thing and the error has been discovered, is bound to warn the donee or buyer so that he may render the thing to the owner, or the owner himself so that he may be able to recover his own thing? Resp. Affirmatively, if he can do this without his own grave inconvenience. For no one, precisely by force of charity, is bound with his own grave inconvenience to help his neighbor constituted in some grave necessity, whether temporal or even spiritual. Nor is anyone, precisely by force of justice, bound with his own grave inconvenience to repair or impede the grave damage of his neighbor, whether it is temporal or spiritual, unless from piety, from contract or quasi-contract, from formal grave and efficacious injustice, or from juridical sentence, or the authority of law. L. 601; Gury 637.

Whether he who in good faith bought a stolen thing can return it to the thief in order to recover his own price? Resp. Negatively, if the owner appears, reclaiming his own thing from him; for then he must render it to him, even with the loss of his own price, because by natural law the owner can seize his own thing wherever he finds it. Nevertheless an action is given to the buyer against the thief. C. A. 333. Except according to C. I. and C. G. if the thing was bought in a public market, or from one who is accustomed to sell things of this kind; for then the buyer is not bound to render the thing to the owner unless the price is paid. But this disposition of law, according to several, has force also in the forum of conscience, because it is very useful to the public good, to the tranquility of possessions, and greatly favors commerce. Cf. 1333; Bouvier, de Possessore bonae fid.; Carrière 1041; Gousset 1027.

If the owner is indeed known, but unaware of the thing, the first opinion, "very probable," denies, "because the thing snatched from the hand of the thief has now obtained a better state; and therefore if he were to return it to the thief, he would throw it into a worse state, and thus would inflict injury on the owner." The second opinion, "perhaps more probable," affirms, "because you are not bound to preserve the thing for the owner with your own damage." But since each one has a right to guard against his own damage, there certainly "is not forbidden to him that action which of itself is necessary and direct for repairing his own damage, although indirectly and accidentally damage comes to another.... Yet it must be noted that this opinion can have place only when no other way of recovering his own price is available to the buyer except by restoring the thing to the robber." L. 569.

If the thief, or another seller, does not appear, or does not wish to render the money, the buyer, once the owner is known, cannot sell the thing to others, nor turn it to his own uses in order to keep himself indemnified, because he is not the owner of the thing; but he must render it to the owner, notwithstanding the loss of the price. He preserves recourse against the seller. But if he cannot find him, the damage must be undergone by him. Cf. 1351; C. A. 333.

Whether he who buys a thing from a thief in order to restore it to the owner can reclaim the price from the owner? Resp. Affirmatively, if he bought it at a very modest price. For he usefully conducts the owner's business. But he who usefully conducts the owner's business is not to be defrauded of the price which he paid for the utility of the owner.

C. A. 333. - Resp. Negatively, speaking of itself, if he buys it at an altogether just price. For the owner on one side is not bound to buy his own thing, and the buyer on the other side in that case would not usefully conduct the owner's business if he could compel him to pay that whole price. Wherefore in the case he can reclaim only the part which, from the management of affairs useful to the owner, he could reclaim. Speaking of itself; for if the owner were prepared to recover his own thing at whatever price, then the buyer could demand this whole price, because then in fact he usefully conducts the owner's business. C. A. 333. - But what if the buyer had indeed judged that the thing was valued by the owner at so much, but falsely? Some stand for the buyer, others for the owner. "Tamburini settles the dispute, establishing thus: that the just price, however enormous, must be paid to the buyer if indeed he suffered himself to be deceived relying not on light but, in the judgment of prudent men, grave foundations; otherwise if by lightness of mind and without the matter being well weighed." Ithur., Cas. 4, n. 5. - L. 600.

What of a possessor in bad faith? - A possessor in bad faith must restore the thing itself, materially or formally existing, for the thing cries out for its owner. Moreover, he is bound to compensate all damages which came to the owner from the unjust possession of the thing, for he is the per se efficacious cause of those damages. - Likewise he is bound to restore all those things in which he has been unjustly made richer from the unjust detention of another's thing; for no one can justly become rich from another's injury. C. A. 335; C. B. 985, 987-990, 992; C. He. 940; C. L. 496. According to C. I. 1147, he who received payment in bad faith is bound to restitution both of the capital and of the interest or fruits from the day of payment.

Resolutions: If the thing had varying value, the possessor in bad faith is bound to restore the thing to the owner, if he has it, whatever value it now has, for the thing increases and decreases for its owner; and besides to compensate damages, if any followed, for instance if it was made worse by his fault, if the owner would have sold it at the time of greater value, etc.

But if he no longer has the thing, he must restore it according to the value which it had then, when it perished or he alienated it, because, since the thing perishes to its owner, and it then perished according to the value which it then had, no other obligation now remains except of that value which was then equivalent to the thing and represented it. Likewise, since when the thing was alienated it pertained to the owner, and pertained to him according to the value which it then had, that value is consequently owed to the owner. Likewise he must compensate damages, if any followed, for instance if the owner would have preserved the thing up to the time of receiving the greatest profit from it. And certainly, if then the thief had restored the thing to the owner when it perished or he alienated it, he would have had to give nothing else to him except the thing itself, whatever value it then had, and compensate losses incurred or profits ceasing, "according only to the estimation of the hope." L. 768, 619, 620, 621; C. H. 1896; C. I. 1147, 1148; C. G. 1378, 1379; C. B. 849.

Whether a possessor in bad faith must also restore fruits? Speaking absolutely, standing in the rigor of principles, he would have to restore all fruits, after expenses are deducted, as will be said in the following number, because the thing bears fruit for the owner. Yet, morally speaking, when the matter concerns theft of a small and very common thing, e.g., of a hen, it suffices if the value of that thing is restored, because by common estimation the owner of the thing has suffered no other damage. For if he wants to have another similar thing, he can very easily procure it for himself. Hence one must restore neither the eggs nor the other chicks obtained from it. L. 621; Gousset 935; C. B. 987, 988, 990; C. L. 497.

What of industrial fruits and of expenses made? - A possessor in bad faith can retain all industrial fruits and deduct expenses, both necessary and useful. The reason is that labor bears fruit for the one laboring; but the owner himself would have made necessary expenses to preserve the thing for himself; and useful expenses increase the thing and render it better for him. It is in the owner's power to refund either as much as was expended, or as much as the land has been made more valuable. Indeed, in the forum of conscience and before the sentence of a judge condemning him to the penalty of the delict, he can deduct even merely voluptuary expenses where they can be separated while the substance of the thing remains intact; for no right of the owner is injured thereby; or if they cannot be separated without detriment to the thing, and the owner would also have made them, or wishes to sell the thing, but not in the opposite case, because again in one case the owner suffers no damage, but he does in the other. - L. 618; C. A. 336; C. I. 450, 705, 1150; C. G. 548, 555, 1381; C. B. 850, 852, 994 ff.; C. H. 453, 455, 456; C. L. 497, 498, 499, 502; C. He. 940.

Whether a thief who stole a thing otherwise certainly going to perish is bound to restitution? - Resp. Affirmatively, after deducting expenses made, with the price of the labor employed to free the thing from danger. The reason is that that thing, now snatched from danger, does not cease to pertain to the owner, although it was previously exposed to the greatest danger. Resp. Negatively, if the thief immediately consumes the thing remaining in certain danger, e.g., food or drink already going to perish in a fire, because a thing not freed from danger is of no value for the owner, since it is estimated at no price. Besides, the owner cannot then be reasonably unwilling that a thing certainly going to perish for him be consumed by another. Several extend this to the case in which another's thing is withdrawn from proximate danger which is foreseen, and is immediately consumed; e.g., if you take another's wine certainly about to be seized by a hostile incursion, and drink it with family or friends. The reason is that since it is immediately consumed, by moral estimation it still has no value. Lugo d. 18, n. 77, 144 seq.; L. 620; Elbel 80.

Whether a thief is bound to restitution if the stolen thing has perished with him? - Resp. Affirmatively, absolutely, if it perished by the fault of the thief or of any other, because the thief was the efficacious cause of the damage, whether he himself or another lost or consumed, gave away, or destroyed the thing from culpable negligence. Resp. Affirmatively generally, if likewise the thing perished with the thief even without any fault of his. The reason is that the thief, by taking away the thing, took upon himself the whole danger of it. Generally: for it would be otherwise if the thing would have perished with the owner at the same time and by the same case, or from its intrinsic defect, because then no damage at all is inflicted on the owner. More probably this holds 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, e.g., 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 have perished in the same way and time. L. 620; H. A. 79; Lugo d. 18, n. 141; Vogler n. 501; C. A. 338; C. H. 1896; C. I. 1148, 1298; C. G. 1302, 1379; C. B. 989, 990.

If the thing would have perished at the same time with the owner; because if it would have perished beforehand, and it is to be ascribed to the theft that it did not perish, it was always crying out to the owner while it remained with the thief, nor would it have perished if it had already been restored; therefore the thief is bound to restitution.

But if it would have perished afterward with the owner, the same obligation of restitution presses for the thief, who at that instant in which the thing perished with him contracted the obligation of restoring. In the same danger; because where the danger is altogether diverse, it can well be imputed to the thief that it perishes, because without his theft the thing would not have been exposed to this danger, although it would have undergone another risk. Yet some contradict, because, they say, it is the same whether the thing perishes in this or in another danger, when each risk coexists at the same time. L. 620.

According to Roman Law; Italian 1208; French 1302; Austrian 338; Spanish 1185; German 848: in whatever way the thing perished in the hands of the possessor in bad faith, he is held to restitution. Yet he does not seem to be obliged to restitution before the sentence of a judge, unless it is established that he is obliged by natural law, because this was constituted as a penalty, out of hatred of theft and violence. Carrière 1072; Gousset 933, in a. 1302.

Whether a buyer in bad faith can restore the thing to the thief? Resp. "Doctors more commonly deny this.... But Holzm., Elbel, etc., still affirm. And Lessius calls this opinion not improbable. And indeed not without merit Busenbaum thinks it absolutely probable; indeed Lugo says perhaps more probable. The reason is that although this man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as a buyer in good faith, to rescind the contract by rendering the thing to the thief, as was proved above." L. 570, 600; cf. here 1343. Indeed D'Annibale, ed. 4, p. 2, n. 242, says: "Even if it is not of interest to you, I think an action for damage cannot be brought against you, since you set him back into the former state." Yet C. B. 851 does not free the one restoring it if he knew the right of a third party.

What of a possessor in doubtful faith? - A possessor in doubtful faith can be such either at the beginning or only during the course of possession. Concerning the first case it has been said above, n. 1327. Concerning the second, the discussion is here. - A possessor in doubtful faith must inquire after the true owner of the thing; otherwise he exposes himself to the danger of retaining another's thing through his own culpable negligence. Once inquiry has been made, and doubt perseveres, he can retain the whole thing if before the doubt arose he possessed in good faith. The reason is that peaceful possession of a thing in good faith exhibits moral certainty. L. 547, 608; Gousset 940, 1028; C. A. 323; C. I. 687; C. G. 550; C. H. 433.

What if a possessor in doubtful faith neglects to inquire after the true owner of the thing? Inquiry having been neglected, if the owner can no longer be found, "it seems," says Father Gury, 653, "that something must be restored to the poor according to the proportion of the hope which the owner could have had of recovering his own thing. Generally that hope does not reach half the price, but is of much lesser value." - But that resolution does not seem capable of demonstrative proof from the principles of law; rather the opposite seems to be drawn from them. For if up to now someone has neglected to inquire, he can still institute inquiry in the present. In addition, since it is probable that there is in fact no owner, because the thing probably is not another's, it is not established that this possessor culpably deprived the owner of the hope of recovering his own thing. Likewise, although someone neglected to make that inquiry, he always has in his favor the prior possession of the thing, altogether peaceful before the doubt arose, and therefore even now he can invoke in his favor that known principle: The condition of the possessor is better.

This can be confirmed from another resolution which the same Father Gury has, 655. For, according to the praised theologian, a possessor in doubtful faith who began to possess in good faith, if, after inquiry has been made, he finds that the thing is more probably another's, more probably is not bound to restitution, "because from certain possession a morally certain right arises. In addition, until the other has proved his certain right, the axiom holds: The condition of the possessor is 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 proportionally." But 1. each of these reasons does not lose its force even if someone neglected to inquire. 2. As is established from the second reason, in fact someone is not held by a strict obligation of justice to inquire, but can always prudently say: The condition of the possessor is better, until the other proves his certain right. 3. That hope of finding the owner through inquiry, even if the doubt is not merely negative, for then, as imprudent, it can be disregarded, but positive, constituting true probability, can by right be equated with probability or even greater probability in favor of the owner. But even while this greater probability stands in favor of the owner, after inquiry the possessor is not bound to restore. Therefore neither before, until the other has proved his certain right. L. 547, 562, 657, 658, 706; l. 6, n. 906.

Note: The conclusion placed last holds also for a possessor in doubtful faith from the beginning of possession, when he accepted the thing under title of purchase, donation, etc., doubting whether he from whom he accepted it is its owner, and he neglected to inquire, and the owner of the thing can no longer be found. For a nearly similar reasoning can be made here. This again can be confirmed from the doctrine of the same Father Gury; for he openly has these things, 656: 1. "If you doubt whether your predecessor possessed goods by legitimate title, you can, after the matter has 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 better, favors your predecessor, it also favors you as successor; for in this case the principle of a possessor in doubtful faith who began possession in good faith must be applied, since predecessor and successor make one moral person by law." 2. "In doubt whether someone began in good or bad faith, presumption must be made in favor of the possessor, because delicts are not presumed but must be proved." - Moreover, if someone has this intention, that, possessing the thing as though meanwhile precariously, he wishes to render it to the owner whenever he appears, he licitly takes and retains possession. - Lugo d. 16, n. 96; D'Annibale, ed. 4, p. 2, n. 121; Gousset 1028.

What, in a case of doubt, if possession of the thing is not had? When none of those about whom it is doubted whether they are owners of the thing in fact possesses the thing itself, at least from natural equity, if the doubt is equal, the thing must be divided equally among them; but if the doubt is unequal, it seems 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 by consent of the parties it must be conceded to one, who is obliged to render to each of the others his right; or even cast into lots, so that it may be attributed to him whom the lot favors. La Croix 566; Sanchez, decal., l. 2, c. 23, n. 173; Carrière 1101; L. 706; D'Annibale, l.c.; cf. 1469.

490. The second root of restitution is the unjust possession of another's thing; it is called unjust even as regards the possessor in good faith, because the obligation of restoring begins at that time when he becomes conscious of another's right, and therefore knows that another's thing can no longer be justly possessed by himself. - The possessor can be of good, bad, or doubtful faith, according as he inculpably, culpably, or with a doubtful conscience detains another's thing; these must be discussed separately, but first certain axioms, which occur more frequently in this matter, must be explained.

¹ St. Thomas, 2. 2., q. 62, a. 2-6; Soto, lib. IV, quaest. 6, a. 3-5; quaest. 7, a. 2; Sayrus, lib. X, tr. II, cap. 2-3; Lugo, disp. XVII; Billuart, diss. VIII, art. 9-11; St. Alphonsus, n. 607-625; Elbel-Bierbaum, P. VI, n. 28-91; Reuter, P. III, tr. III, cap. 2; Carriere, n. 1035-1102; Lehmk., n. 944-961; Baller. P., n. 415-439; Genicot, n. 523-534; Noldin, n. 434-449.

491. 1. The thing cries out to the owner, or toward the owner. This principle flows logically from the very right of dominion explained above (n. 74); namely a thing which legitimately pertains to someone is so connected to him that, if it has been separated from him, it tends to return to him, and thus as it were cries out to the owner. Therefore the owner, wherever he has found it, can by right and deservedly seize it; and consequently the holder, even one in good faith, must return it to the owner as soon as morally possible, unless by prescription or another just title he has made it his own.

2. The thing fructifies for the owner, that is, natural fruits pertain to the owner of the thing, just as the substance itself of the thing, as was explained above, n. 235-236; but industrial fruits, insofar and inasmuch as they proceed from the industry of another, are attributed to this person and not to the owner.

492. 3. A thing naturally perishes for the owner; namely, if a thing is naturally destroyed, without another's fault, the owner must bear the damage which follows from this; for when the thing, which was the foundation of dominion, has been removed, the right in that thing by that very fact perishes. Yet if the thing, although destroyed in itself, subsists in an equivalent, - insofar as, e.g., another accepted its price, or by using it spared his own goods, - it must equivalently be restored to the owner.

4. No one ought unjustly to become richer from another's thing; that is, no one ought to become richer from another's thing itself, or from all those things which naturally come forth from that thing, as is clear from the second axiom: the thing fructifies for the owner. But someone can become richer on the occasion of another's thing, insofar as, by using that thing, he produces something by his own industry, which is truly the fruit of his own labor, and therefore is legitimately acquired by him.

493. The general principle is that the possessor in good faith is bound to restitution: 1. as often as he is conscious that he detains another's thing without a legitimate cause; 2. as often as he has become richer from another's thing.

The reason for the former is that the thing cries out to the owner; therefore as soon as the possessor knows that some thing is not his, but another's, and moreover that there is no legitimate reason for retaining it, he cannot keep it without violating the rights of another.

The reason for the latter is taken from the fact that the thing fructifies for the owner; therefore if the possessor has become richer from the thing of another, e.g., by sparing his own goods while he consumed another's goods, he cannot retain this increase for himself, but must hand it over to the owner, to whom in fact it pertains as the equivalent of the thing consumed.

494. Practical applications. For explaining the general principle more fully, a threefold hypothesis can be imagined, according as the thing was possessed by one only, - or by several who transmitted it by onerous title, - or by gratuitous title.

First hypothesis: There is only one possessor, who has not transmitted the thing to others. (A) As long as the possessor of another's thing remains in good faith, he can use it as if it were his own; and, when the time required for prescription has elapsed, he acquires dominion over it.

(B) As soon as he discovers that the thing possessed by him is another's, he is bound to restore it to the owner, or at least to warn the owner that he should remove it at his own expense. For the thing cries out to the owner; hence another cannot retain it without injustice. Moreover, no one ought unjustly to become richer from another's thing; but if the possessor were not bound to return another's thing as soon as morally possible, he would unjustly become richer from another's thing by retaining what is not his own.

Hence, even if he bought another's thing, he must restore it, and indeed without compensation, unless civil law has disposed otherwise;¹ but he has recourse against the seller, from whom he can reclaim the price paid: for the sale was null, since the seller sold a thing not his own. - He is bound to return the same thing individually, if he still has it, since the thing itself cries out to the owner, nor can the owner be compelled to sell or exchange this thing.

¹ In France, if the thing was bought at a fair, by public sale, or from a merchant selling things of the same species, the owner must refund the price to the possessor. Cf. Cod. civ., a. 2280, in Supplement., p. 61*.

(C) If another's thing has perished, or has been consumed during good faith, the possessor by natural law is bound to nothing; unless however he has become richer from it, e.g., by sparing his own goods: for then he must restore to the owner that in which he became richer. For, on the one hand, the thing perishes for the owner; and therefore the possessor in good faith, who did not become richer from it, is not bound to restitution by reason of retention, since he does not retain the thing; nor by reason of damaging, since he is not the culpable cause of damage. But if he has become richer from it, then the thing exists, if not in itself, at least in an equivalent; and therefore he is bound to render that back.

495. Second hypothesis: the thing has passed from one to another, or even to several, and indeed by onerous title, through sale. - Either there is place for eviction, or not.

(A) If there is place for eviction,¹ i.e., if the thing still exists, and the owner demands it from the last holder, either judicially or privately, and the holder has no means of defending himself from eviction, the last holder is bound to return the thing to the owner by force of the principle "the thing cries out to the owner"; but the last holder has recourse against his seller, who, by force of the contract of purchase, at least implicitly promises to compensate the buyer if there is place for eviction, as is said below. Likewise the last seller has recourse against him from whom he bought the thing, and so thereafter until one arrives at him who had received the thing by gratuitous title, or at the thief himself.

¹ Eviction is a legal act by which the buyer is disturbed from the possession of the thing bought, because it is vindicated by the true owner (below n. 762).

The same seems to be said if the last holder has spontaneously restored the thing to the owner; but if he did this without consulting the seller, in certain regions he cannot legally demand the price of the thing from the seller, because by having recourse to the seller he often could have defended himself from eviction; this is explained more fully where sale is treated.

496. (B) If there is no place for eviction, - because, namely, the thing was consumed, or perished by a fortuitous event, - the first seller is bound to refund to the owner the price of the thing, insofar as he became richer from it; but the other possessors are bound to nothing, because they were in no way made richer from another's thing.²

² If by selling more dearly than they had bought they have gained something, this proceeds from their industry, not from the thing itself; unless however the thing itself increased (because, e.g., a foal grew): then the increase is a fruit, concerning which we shall treat below.

497. Third hypothesis: the thing was transmitted from one to another by gratuitous title, or through donation. Then the first possessor, who in good faith donated another's thing, is bound to nothing, since he was not made richer from another's thing; the same must be said of intermediate possessors, who did not detain the thing; but the last possessor, who received the thing by donation, must return it to the owner, if it still exists; otherwise, he is bound to hand over an equivalent thing, insofar as he became richer; hence he is bound to nothing if he was not made richer from it.

498. Corollary. If someone in good faith bought a stolen thing, and knows that it is stolen before the time of prescription has elapsed, can he return it to the thief, in order to recover the price?

(a) If the owner has sought his thing before it is returned to the thief, the buyer is bound to restore it; for the thing cries out to the owner; but he himself has recourse against the thief.

(b) 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.

(c) If the owner has not yet sought his thing, it is controverted among theologians: some say that the thing must be returned to the owner, but not to the thief, because the thing cries out to the owner; others assert, with sufficient probability, that it can be returned to the thief, because the contract, on account of fraud or error, is rescindable, and moreover no one is bound to harm himself in order to benefit another. Hence in practice he who has followed this opinion cannot be compelled to restitution; but from charity the buyer is bound to warn the owner, as often as this can be done without inconvenience, so that the owner may be able to recover his thing from the thief.

(d) But if the thief does not wish to rescind the contract and return the price, the buyer cannot consume the thing or sell it to another, but is bound to restore it to the owner, even if he is going to receive no compensation from him, because the thing cries out to the owner; yet he has recourse against the thief.

499. (A) By natural law: (a) Industrial fruits, which namely are acquired on the occasion of the thing by the possessor's own labor, can be retained by the possessor in good faith: for each one legitimately makes his own the fruits of his own labor.

Hence he who, in good faith by trading with another's money, acquired great riches, is not bound to restore these to the owner, but only the usual increase of the money; likewise he who painted a picture of great price with another's brush and another's colors is not bound to restore it to the owner of the brush, but only to give compensation for the use of another's material.

500. (b) But natural fruits must be restored to the owner, provided they exist in themselves or in an equivalent, and have not been prescribed, after however the expenses which were necessary for collecting or preserving them have been deducted; for the thing fructifies for the owner.

The same must be said of civil fruits, which arise from the use of the thing, such as income from the renting of a house or from a loan, etc. Some, especially among the older theologians, except the increase from a loan, because it cannot be called a natural fruit; nevertheless this is commonly rejected today: for, in the present state of affairs, legal increase is deservedly counted among natural fruits, since it is taken not from the industry of the possessor, but from the thing itself.

It was said: provided they exist... for if they have been consumed without the possessor having become richer from them, by natural law he is not bound to pay the price, as was explained above; - after the expenses have been deducted, for he who enjoys the advantages must sustain the burdens.

501. (c) As regards mixed fruits, which arise partly from industry and partly from the thing, they must be divided between the owner and the possessor according to the estimation of a prudent and honorable man; for in that part in which they are natural, they belong to the owner; and in that part in which they are industrial, to the possessor. Thus, e.g., as regards crops, the possessor can collect them, after the usual price for the lease of the fields has been paid.

502. Corollary. If someone in good faith bought a stolen thing at too cheap a price and sold the same more dearly, an increase of this kind can be regarded as an industrial fruit, if it can be attributed to the labor and skill of the possessor; as a natural fruit, if it proceeds from the thing itself, e.g., if wheat becomes dearer because of scarcity; as a mixed fruit, if it arises partly from industry, partly from the thing itself.

(B) By French civil law (which also prevails in several other regions), a possessor in good faith makes his own all fruits already received.¹ - This provision more probably has force in conscience: for the right belongs to the civil authority of transferring dominion when a reason of the public good is present; and this is verified in the case, since the law tends to avoid lawsuits and lest the possessor in good faith suffer damage from an unexpected restitution.

¹ Cod. civ., art. 546-549, 585-586, in Supplemento, p. 11* and 51*; cf. Planiol, I, n. 909-915.

503. Expenses which are made for the preservation or increase of a thing are usufructuary or extraordinary. - The former are those which are necessary for receiving fruits; but where the possessor does not keep the fruits, e.g., in the United States of America, he has the right of obtaining compensation for expenses of this kind: for the owner cannot legitimately receive the fruits unless the expenses have been deducted.

Extraordinary expenses are of three kinds: necessary, without which the thing would have perished or would have become worse (e.g., those which are made lest rain invade a house); useful, which increase the value of the thing, as are plantations, buildings, etc.; merely voluptuary, which are made for the sake of ornament, e.g., by adorning walls with paintings, without the value of the thing being increased.

504. (A) By natural law, the owner must compensate necessary expenses, indeed also useful ones, at least insofar as they increase the saleable value of the thing; otherwise he becomes richer from another's thing, namely from the money which the possessor paid for preserving or increasing the value of the thing.

As regards voluptuary expenses, which do not increase the price of the thing, strictly speaking the owner is not bound to refund them to the possessor; but if ornaments of this kind can be removed without detriment to the thing, the possessor has the right of taking them away with him.

(B) But civil law concerning this matter is diverse among various Nations. In France, the owner must refund to the possessor, even one in bad faith, necessary or useful expenses;¹ concerning voluptuary expenses, it is established that they must be compensated by the seller in bad faith.²

¹ Cod. civ., art. 1381; cf. art. 555, in Supplement., p. 52*.

² Cod. civ., a. 1635, in Supplement., p. 148*.

505. A possessor in bad faith is he who culpably detains another's thing. He is bound to restitution by a twofold title, insofar as he is the unjust possessor of another's thing, and insofar as he is a damager; wherefore he must not only restore the thing itself, but also compensate all damages which followed from the unjust detention of the thing.

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.

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.

A man may be possessed of the property of another without a just title either through an act of injustice, e. g., fraud, theft, usury, etc., or in good faith, e. g., by purchase, donation, or legacy. In the former case there is a culpa theologica, i. e., a formal violation of strict justice (iustitia commutativa), in the latter there is merely a material injustice. These two forms of unjust possession determine the manner in which restitution must be made.

The general rules for determining the duty of restitution are the following:¹

¹ P. J. Lönartz, Die Restitutionspflicht, pp. 77 sqq., 179 sqq., 266 sqq.—Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 610: “The owner of a thing alone has the right per se to possess it, nor does he lose ownership of the thing into whosesoever hands it may come. Per se is said because any other possessor, even one in good faith, has the right to possess the thing only per accidens and from invincible error. From this principle, moreover, the following four axioms flow of their own accord: 1. The thing cries out for its owner, that is, the owner has a strict right to recover his property wherever he finds it; 2. The thing bears fruit for its owner. The reason for this axiom is that enjoyment is necessarily—” “included perfectly in the idea of ownership; 3. A thing naturally perishes to its owner, for when the object of ownership ceases, ownership itself thereby vanishes. But if it still exists in an equivalent, that equivalent belongs to the owner; 4. No one ought to be enriched from another’s property. Or in other words: The measure of restitution is the quantity of the thing detained. The reason is clear, for only the owner of the thing has the right to receive any fruit from it. But these general principles are modified according to the different condition of the possessor and sometimes according to the varying legislation of places.”—Cfr. Göpfert, Moraltheol., Vol. II, p. 260.

a) “Res clamat domino,” i. e., the rightful owner is entitled to his property, no matter into whose hands it may have fallen. This rule follows necessarily from the nature of property and ownership. In applying it, however, due regard must be paid to prescription, etc.

b) “Res fructificat domino,” i. e., the rightful owner is entitled to the fruits of his property, provided, of course, he has not ceded this right to others.

c) “Res naturaliter perit domino,” i. e., the right of ownership is bound up with the object owned and ceases with that object. If the object has perished, but its value continues, the original owner is entitled to the latter, as, e. g., when a ton of wheat has been sold and the sum received is still in the hands of the seller. If a thing has perished not from natural causes, but through the fault of the possessor, the owner is entitled to restitution.

d) “Nemo ex re alienâ locupletari potest,” i. e., no one has a right to enrich himself with the property of another, for the fruits of that property do not belong to the unlawful possessor, but to the rightful owner.

If the possessor cannot reach the owner, he must make restitution to his heirs.

It is quite a different thing, of course, to be benefitted occasione rei alienae, without injustice to anyone, for instance, by the growth of a community, the construction of a railway, the erection of a factory on or near one’s property, etc.²

² IDEM, ibid., pp. 118 sqq.; Slater, I, 374 sqq.

The fruits of a thing (fructus rei) may be:

α) Fructus naturales, natural, i. e., derived from the thing itself (beneficio naturae) without the co-operation of man, or with but slight co-operation on his part, for example, fruits of trees, wood in a forest, grass on a meadow, milk, wool, etc.; β) Fructus industriales, i. e., fruits of human industry or toil, such as the profits from a sale or purchase, etc.; γ) Fructus mixti, which are partly the result of industry (ex industria) and partly of the natural or artificial fertility of the property (ex re ipsa), for instance, grain, wine, etc.; δ) Fructus civiles, which are derived from an object by means of the civil law, e. g., rent, salary, etc. The latter category may be reduced to the first (fructus naturales).³

³ Gury, I, n. 613: “Fruits of different kinds must be distinguished: 1. Natural fruits, which proceed from the substance of the thing itself without any or with little human labor, such as grasses, etc.; 2. Industrial fruits, which are attributed chiefly to the action of the possessor using the thing; generally, however, fruits are partly natural and partly industrial, such as crops, etc., and are called mixed; 3. Civil fruits, which are not fruits properly so called, but are regarded as such by law, such as annual revenues, the price of leasing, etc.”—Cfr. Noldin, Summa Theol. Mor., II, 391 sqq.; Slater, I, 374 sqq., 401.

1. One may be in possession of the property of another either in bad faith or in good faith. A possessor malae fidei is one who knows, or has good reason for believing, that the property he holds belongs to another.⁴ Such a one is bound to restore to the rightful owner whatever the latter has been unjustly deprived of, that is to say:

⁴ Gury, Comp. Theol. Mor., Vol. I, n. 622: “A possessor in bad faith is one who knows that the thing which he received or possesses is not his own.”—St. Augustine, De Fide et Operibus, c. VII, n. 10: “In the law of estates, each person is most rightly called a possessor in good faith so long as he is unaware that he possesses another’s property; but when he has learned this and has not withdrawn from another’s possession, he is then regarded as being in bad faith, then he is justly called unjust.” (Migne, P. L., XL, 203).—Cfr. Lehmkuhl, Casus Consc., I, n. 652–655.

a) The stolen property itself, for “res clamat domino.” If the property no longer exists, its value must be restored. If it has deteriorated in value whilst under the control of the unlawful possessor, restitution must be made of the value it had when it was taken from its rightful owner. If its value has increased, it must be restored as it is, with all its fruits, for, “res fructificat domino.” If the stolen property fluctuated in value after the theft, the owner’s loss must be made good, and if he intended to sell it when at its highest value, that value must be restored to him.⁵

⁵ Slater, I, 405.

b) All the fruits of the property, natural, industrial, and mixed, must be restored to its owner. But any necessary or useful expenses incurred by the illegitimate possessor for the preservation or improvement of the property, as well as such fruits as may be the result of special efforts on his part, may be deducted.

c) The damage suffered by the owner in consequence of being deprived of what belonged to him (damnum emergens) as well as any profits he may have lost (lucrum cessans), must also be restored to him.⁶

⁶ St. Alphonsus, Theol. Mor., l. III, n. 614–625 (ed. Gaudé, II, 94 sqq.); Gury, Comp. Theol. Mor., I, n. 622–627.

A difficulty arises if the property has fluctuated in value while in the hands of the unlawful possessor. A change in the value of an object may be either intrinsic or extrinsic. An intrinsic change occurs, for instance, in a colt that grows up to be a horse, or in a horse that becomes useless in consequence of old age. An extrinsic change of value may be brought about through a rise or drop in the market. As regards intrinsic changes, the unlawful possessor has to make restitution to the owner for any decrease in value which would not have happened had the owner kept his property, as, for example, if a fat ox grows lean or a good horse is overworked. If the value of the object has increased, the unlawful holder must restore the increment together with the object to the rightful owner, but may deduct necessary or useful ex- penses.

In regard to a change in value the following general rules apply:

a) If the price has risen or fallen, and the thief sold or consumed the stolen property at the time when the lawful owner had intended to sell or consume it, he must restore to the latter the price which the object would have brought at that time. If the price has risen or fallen, and it is certain that the owner would have sold or consumed the property had it been in his possession at the time it fetched the higher price, restitution must be made at the higher price. If the object was one which the lawful owner had not intended to keep, and its price rose and fell, and the unlawful possessor sold or used the object when the price was lowest, he is obliged to make restitution at the lower price only, for in that case the owner suffers no loss and he himself was not enriched by the fluctuation in price. If the owner would have sold the property in case the illegal possessor had restored it at a time when its price was high, the latter is in duty bound to pay the higher price. If the owner would have consumed the object at the time when the price was low, and the thief, or his abettor, sold or consumed it at the time when the price was high, he must make restitution at the higher price, for “res fructificat domino.” However, some moralists are satisfied with demanding that restitution be made at the lower price, for the reason that the thief, having consumed the stolen property, has not become enriched and the owner has suffered no additional loss. When there is doubt whether the owner would have kept his property until he could have gotten a higher price or would have sold it at a lower price, the thief is bound to make restitution pro rata dubii, i. e., in accordance with the degree of doubt. But since, in praxi, all the circumstances of a case do not usually become known, it will be sufficient as a rule to make restitution of the stolen object at the price which it would have fetched at the time when it was stolen.⁷

⁷ Göpfert, Moraltheol., Vol. II, pp. 265 sqq.; Slater, I, 406 sqq.

2. A possessor bonae fidei is he who is honestly, though erroneously, convinced that an object rightfully belongs to him, e. g., because he has acquired title to it in a legitimate way, for instance, by purchase, inheritance, etc. As soon as he discovers that the property is not his, such a one is bound to restore it to the rightful owner, or at least give the owner notice to get it, at his own expense.⁸

⁸ Gury, Comp. Theol. Mor., I, n. 611: “A possessor in good faith is one who is invincibly ignorant that the thing possessed by him belongs to another, or prudently judges it to be his own, v. g., because he acquired it by a title of itself transferring ownership, such as inheritance, legacy, donation, or purchase. It is supposed, however, that he has not yet acquired the possessed thing by prescription; for otherwise he would no longer be the holder of another’s property, but of his own. As soon as a possessor in good faith learns that the thing possessed by him belongs to another, he is bound to restore it to the owner insofar as it still exists, in whole or in part or in profit. The reason is that unless such a possessor restored the thing or its equivalent, he would retain another’s good against the owner’s reasonable will; for he would violate the owner’s strict right by retaining that to which he has no right, and therefore would now become an unjust holder.”—Cfr. ibid., n. 612–621.—Lehmkuhl, Casus Consc., Vol. I, n. 648–651.

a) He must restore, first, the property itself, if, or in as far as, it still exists, for “res clamat domino.” If the property no longer exists, he must restore what he gained by its possession, on the principle that no one has a right to enrich himself at the expense of another.⁹ If the stolen property has been lost, either through or without the possessor’s fault, the latter need not restore its equivalent, because “res naturaliter perit domino” or “casum sentit dominus.” Likewise, in case of doubt whether he has be- come richer through possessing the property, or whether some portion of it is still in existence, the unjust possessor is not obliged to make restitution, for, “in dubio melior est conditio possidentis.”

⁹ Reg. Iur. in VI° Decr. Bonif. VIII, n. 48: “No one ought to be enriched through another’s injury or loss.”

b) He must restore, secondly, all the fruits of the stolen property, in so far as they are derived from its nature (fructus naturales) and have not been consumed to satisfy his own needs, for “res fructificat domino.” The fructus industriales belong to the possessor and the fructus mixti must be divided pro rata, but the possessor may deduct expenses and make a reasonable charge for his toil. Unnecessary and accidental expenses give no just claim for compensation. If the civil law grants to the possessor bonae fidei the consumed fruits, he may take advantage of this privilege.

c) If one finds that he is in possession of something that rightfully belongs to another, and to which he himself holds a legal title, he may fall back on the person from whom he has acquired the property, but he cannot make the restitution of the object to its rightful owner dependent on his own indemnification. Generally speaking, however, one who has purchased a property from another in good faith and according to the requirements of the law (optimâ formâ), may await a court decision before he is bound to make restitution.

3. One who has well-grounded reasons for believing that something he has in his possession belongs to another, is a possessor dubiae fidei and as such strictly bound to ascertain whether or not he is the rightful owner of the property. If he neglects to make an investigation, he becomes a possessor in bad faith. One who has been in the possession of stolen property in good faith for a while, and then becomes doubtful of his title, remains in good faith until the doubt is solved (“in dubio melior est conditio possidentis”); he may use the property according to his good pleasure and, in case the real owner is discovered, need restore only such portions of the property as still remain, or the sum by which he has become richer in consequence of its possession. If the doubt as to the real owner dates from the time when the property was acquired, a distinction must be made. If the object has come to the possessor directly out of the hands of the lawful owner (e. g., by occult compensation), it must, if the doubt persists, be restored to the latter whole and entire, for the possessor has no real title and the presumption is against him. But if he has acquired the object in question by some legitimate title (for instance, purchase, inheritance, do- nation), and the doubt merely concerns the right of the former possessor to dispose of it, the present possessor must, according to the greater or smaller probability of the existing doubt, restore a larger or smaller portion of the property to its rightful owner, or, if his identity is unknown, to the poor. The reason is because doubt does not permit of a real ius possessionis and therefore imposes the duty of restitution, while, on the other hand, the lawful title of ownership supplies the defect, as it were, and restitution need consequently be made only pro qualitate dubii. Negative doubts do not impair the good faith of the possessor and should be treated like temptations.¹⁰

¹⁰ Gury, I, n. 628–630; Lönartz, Die Restitutionspflicht, pp. 226 sqq.; Lehmkuhl, Casus Consc., Vol. I, 3rd ed., n. 656–659; Slater, A Manual of Moral Theology, Vol. I, pp. 406 sq.

READINGS.—St. Thomas, Summa Theol., 2a 2ae, qu. 62, art. 1–8.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 22 sqq., 389 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 547 (ed. Gaudé, II, 52 sqq.).—J. E. Pruner, Lehre vom Recht, Vol. II, pp. 5 sqq.—J. Schwane, Die Gerechtigkeit, pp. 85 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheol., pp. 596 sqq.—A. Vermeersch, S.J., Quaestiones de Iustitia, 2nd ed., pp. 161 sqq.—Kutschker, Die Lehre vom Schadenersatz, pp. 3 sqq.—P. J. Lönartz, Die Restitutionspflicht des Besitzers fremden Gutes, Treves 1885, pp. 1 sqq.—F. Lorinser, Die Lehre von der Verwaltung des hl. Buszsakramentes, 2nd ed., 1883, pp. 233 sqq.—T. Slater, S.J., Manual of Mor. Theol., Vol. I, pp. 400–407.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 463–477.—M. Cronin, The Science of Ethics, Vol. II, pp. 377–380.

208. Notions. Someone can possess, or rather detain, another's thing in three ways: 1. in good faith; 2. in doubtful faith; 3. in bad faith. According to these modes and diverse conditions, diverse obligations of restitution also arise. - Since another's thing ought to be restored with its fruits, the expenses nevertheless being deducted, certain things must be noted beforehand concerning the diverse fruits and expenses.

Fruits are customarily distinguished as being of four kinds:

1. Natural fruits, which are produced by the thing without any or with little human industry, e.g., grass in fields.

2. Industrial fruits, which are acquired by human industry alone, although the thing itself is employed as an instrument, e.g., the profit of trading, an artistic work made with another's instrument or from another's material.

3. Mixed fruits, which are produced almost equally from the nature of the thing and from human industry; e.g., butter and cheese are such fruits of a cow.

4. Civil fruits, which arise from the letting of a thing, e.g., the price for the letting of a house, a beast of burden, hunting rights, etc. They are called civil for this reason, that the civil law regards them as fruits of the thing; but they are reduced to natural, mixed, or industrial fruits according as they proceed rather from the nature of the thing, from human industry, or from both together.

Expenses are distinguished as being of three kinds:

1. Necessary expenses, without which the thing either would have perished or would have become worse, e.g., the food of animals and necessary repairs.

2. Useful expenses, which indeed are not absolutely necessary, but nevertheless reasonably increase the value of the thing, e.g., the planting of trees.

3. Voluptuary expenses, which do not increase the fruits of the thing, but are only an ornament, e.g., fountains in a garden, paintings on walls, etc. Sometimes useful and voluptuary expenses are not so easily distinguished.

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.

Another's thing can be possessed unjustly in a threefold way: 1. with good faith, in which case there arises the obligation of restoring from the first root only, that is, from the thing accepted; - 2. with bad faith, and in this case there arises the second root, namely unjust acceptance; - 3. with doubtful faith, from which, according to the various conditions of the doubt, the first or the second root can arise.

DEFINITION. A possessor of good faith is he who invincibly is ignorant that the thing possessed by him is another's. As is clear, such a one does not injure the right of his neighbor except through merely material injustice (I, 34).

In civil Law, he is called a possessor of good faith who possesses as proprietor, from a title transferring property, the defects of which he is ignorant.⁰¹

935. PRINCIPLES. I. A possessor of good faith ought not to become rich from another's thing. There is exception if the thing has already been prescribed; in which case he does not become rich from another's thing, but from a thing which, by force of laws, has been made his (III, 556, 607).

II. A possessor of good faith ought, of himself, to be preserved unharmed: that is, just as he can acquire nothing from another's thing, so he ought to lose nothing; because he is not in fault.

We said of himself, because, in a case of conflict between the possessor and the owner, the owner of the existing thing is superior in right; but laws, on account of the common good, sometimes favor the owner of the thing, sometimes the possessor.

From these principles flow the possessor's obligations and rights, both as regards the thing itself and as regards fruits and expenses.

936. A. Rights and obligations as regards the thing itself. 1. If he still has the thing, for example a horse, money, etc., once the error has been discovered, he is held to restore to the owner the thing existing in whole or in part. For the thing cries out for the owner. Thus from natural and Roman Law.

From French, Italian, Austrian, and Spanish Law, he who has bought a thing in a public market, or from a merchant selling such things, is not held to return it to the owner unless the price is refunded to him; and the owner of the thing can afterward in turn seek this price from the seller.⁰²

From English Law, if the thing was bought in fairs or markets (market overt), except in the case of eviction by the sentence of a judge, ownership is likewise transferred to the buyer of good faith.⁰³ And since this has been established for the security of commerce, the thing can be retained with a safe conscience.

From German Law, he who in good faith has acquired another's thing, not stolen nor lost, from a person not suspect, by that very fact becomes the owner of the thing and can retain it. Indeed, although afterward it is established that it is stolen or lost, he can retain it if he acquired it in an auction, or if it is a question of money, or of titles (titres au porteur). In every case it becomes his after ten years.⁰⁴

2. If the possessor no longer has the thing, in reality or in equivalent, he is held to nothing; because a thing naturally perishes for the owner; unless he has become richer.⁰⁵ In this case he must restore to the owner that in which he has become richer. Now he is said to have become richer who either has spared his own thing while using another's, or has something which otherwise he would not have had. In doubt whether he has become richer, he is held to nothing; because in doubt no one ought to be deprived of his own thing (III, 706). Cf. above n. 45.

Hence: a) If in good faith you have bought a thing taken by theft and sold it without profit, you are held to restore nothing; but only he with whom the thing is. But if you have received profit, you must refund this, unless it is the fruit of your industry, to the owner seeking it. - b) If you have sold another's thing given to you by gift, you must return the whole price, by which you have become richer; indeed to the owner, if he is unable otherwise to recover his right; but to the buyer, if the thing itself has already been restored to the owner. - c) If you have donated or consumed the thing, sparing your own things, you are held to restore as much as you have spared. - d) If you have donated or consumed the thing solely because you had it, and otherwise would not have donated nor consumed an equivalent, you are held to nothing (III, 601, 609).

Note. When a donation of another's thing has been made, the donor, once the error has been discovered, is held from charity to warn either the donee, that he return the thing to the owner, or the owner himself, that he may be able to recover his own thing. Indeed, from the reason of justice, he seems to be held to the same thing, namely from the obligation which the author even of merely material injustice incurs (III, 564).

3. If the possessor has sold the thing, and it has perished in the hands of the buyer: a) he is held to nothing, if he had the thing from an onerous title; for the obligation

of restoring arises neither by reason of the thing, which he no longer has, nor by reason of damage, of which he is not the cause; - b) he is obligated to restore the price of the sale if he obtained the thing from a gratuitous title; for in this he has become richer. But restitution can be made at will either to the buyer or to the owner, since the rights of each appear equally founded.

Except: 1. if the thing would equally have perished with the owner, for example from age; 2. if it perishes by the buyer's fault; 3. if the law disposes otherwise (III, 607-609).

Note. There are not lacking authors who say that, even in the case in which the possessor received from a gratuitous title the thing which has perished, he is held to nothing. See Noldin, II, n. 439, 2.

937. B. Rights and obligations as regards fruits. 1. No one is held to restore industrial fruits, because they are not the fruits of the thing, but of the man who has gained them by occasion of the thing or through the thing. Hence he who, by negotiating with another's money, has acquired riches for himself, is held to bestow none of these upon the owner of the money (III, 610 and 825).

2. As regards natural and civil fruits: a) From natural Law, the possessor of good faith must restore all certain fruits, for example of letting, whether existing or even consumed, insofar as he has become richer from them; expenses and labors, however, being deducted. And the same must be said of mixed fruits, insofar as they are not industrial (III, l. c.). b) But from positive Law, he certainly is not held to restore prescribed fruits, and probably also those already received.

French, Spanish, Austrian, Italian, and German Law transfer to the possessor of good faith all fruits received during his peaceful possession⁰¹ (except, in Germany, fruits received from a thing accepted by title of donation or inheritance); and this disposition of law more probably has force also in the forum of conscience, since it favors the public good by removing innumerable difficulties and complaints which could continually be stirred up concerning fruits to be restored. Thus Gousset, Gury, Del Vecchio, Porpora, and not a few others.

938. C. Rights and obligations as regards expenses. From natural Law: 1. It is licit for the possessor of good faith, when restoring another's thing, to deduct necessary expenses, indeed useful expenses, which he has made for the conservation or increase of the thing. Otherwise the owner would receive more than is his. - 2. But he can demand back or retain nothing for merely pleasurable expenses, which namely he has spent on the ornamentation of the thing, for example for paintings, gardens; because it is not equitable that the owner tolerate costs made on things useless to him. The possessor can carry away the ornaments themselves, provided he does this without detriment to the thing.

Modern laws confirm natural Law almost entirely.⁰² Yet they raise several difficulties in estimating the facts; nor before the sentence of a judge do they compel the owner of the thing to refund expenses doubtfully useful or doubtfully necessary.

939. Questions. QUAER. 1. Whether he who in good faith buys a stolen thing can return it to the thief in order to recover his price?

Resp. 1. Negatively, if the owner appears seeking his own thing. For then he must return it to him, even with the loss of his own price; because by natural Law the owner can occupy his own thing in whatever place he finds it; nevertheless an action is given to the buyer against the thief. - But see n. 936, 1, as regards civil laws.

2. If the owner does not seek his own thing, very probably, and perhaps more probably, the buyer, to whom no other way is available for preserving himself unharmed, can remit the thing to the thief in order to recover his money: both because no one is held to preserve a thing for the owner with equal damage to himself; and because each one has the right to recover his own goods; "and an action is forbidden to no one which is of itself necessary and direct for repairing his own damage, although indirectly and accidentally damage may thence come upon another" (III, 569).

QUAER. 2. What then must be done if you indeed know that the thing possessed by you is another's, but you do not know the owner?

Resp. Concerning this one must determine as concerning a thing found (cf. n. 886). Therefore, if the owner cannot be found, you can retain the money. "And the same must be said of a poor person to whom a thief has given the theft, when the owner has not been found. For if there was no hope of finding him, ownership has already been transferred to the poor person, so that he is not held to return the thing to the owner, even if the latter afterward appears" (H. Ap., X, 69, fin.).

Note. If the possessor of good faith is in culpable delay in restoring, he begins to be of bad faith; and therefore he is held to compensate the damage coming from the delay, as will be clear from the things to be said. But since he must restore in the place where the owner dwells, if the owner is absent, he can defer restitution.

DEFINITION. A possessor of bad faith is he who accepts or retains a thing, knowing that there is no just title for himself for accepting or retaining it. He injures the right of another through formal injury.

940. PRINCIPLES. I. A possessor of bad faith, from the title of the thing accepted, can never become rich from another's thing. The reason is evident.

II. A possessor of bad faith, from the title of unjust damaging, must render the owner of the thing unharmed; in other words, he is held to compensate profit ceasing and damage emerging, at least foreseen in a confused way. The reason also is clear.

This, however, is understood if the owner has a full right in the thing; for if he possesses only a right to a thing, compensation must be weighed according to the value of the hope which the owner had of making the thing his own.

941. From these principles flow the following obligations:

A. Obligations as regards the thing itself. 1. If the thing still exists, it must be restored in the individual. Yet if the thing, which would not have been worse with the owner, has come into a worse state with the thief, the latter is held, at the owner's option, either to restore it with the value of the detriment done added, or to restore its price in full (III, 620).

We said: it must be restored in the individual, and indeed even if the thing taken away has meanwhile increased in price, and notwithstanding that the owner would have consumed it before its increase; for the thing, as long as it exists, bears fruit for the owner.

Note. If the stolen thing first increased in price and afterward decreased, the greater price must be restored. The reason: the thing bears fruit for the owner, and the thief by culpable delay is the cause of the damage which the owner suffers, because the owner was unable to use his thing while it was worth more (H. Ap., X, 78).

2. If the thing has perished, even by a fortuitous event, it must be restored in equivalent. The reason: it is presumed that it would not have happened that the thing perished with the owner. - Moreover, because of the taking away, the thief has taken every damage upon himself.

A fortiori, it must be restored in equivalent if the thing has perished by the fault of the thief alone or of another; for example, if a horse was killed for this reason, that it had been led away by the thief from a safe place. - The obligation of restitution does not cease from the fact that, after the destruction of the thing, a common danger arrived in which the thing certainly would have perished; because the obligation has already been contracted.

Note. a) Yet if the thing perished without the thief's fault, and otherwise would certainly have perished with the owner, the thief is held to nothing; for there is only injury without damage.

b) If the thief, at the same time at which he foresaw the threatening ruin, consumed the thing, he would probably be held to nothing.

c) If, after the common danger had passed, the thing perished in another common danger, the thief in practice is held to nothing else than to restore only the fruits of the thing which the owner would have received from the thing (H. Ap., X, n. 79). The reason: culpable delay in restoring impeded the owner from receiving them.

d) Several modern Codes oblige the thief to restore the price, in whatever way the thing has perished or been lost (French Code, 1302; Italian, 1298; Spanish, 457). This, however, binds the conscience only after the sentence of a judge.

B. Obligations as regards fruits. A possessor of bad faith is held to restore all fruits, both those which he himself has usefully received and those which he has consumed without thence becoming richer; and besides, all the fruits which the owner would have received from his own thing.

Thus a thief is held to restore stolen money with interest, if it is established or conjectured that the money would not have remained idle in the owner's possession. This must most certainly be conjectured according to the custom of men today, if it is a question of a great sum of money, and especially because civil Law also binds one to pay interest even for small sums. H. Ap., X, 74.⁰³

Note. 1. But lest we go beyond measure in computing unfavorable consequences, it is useful to note that evils which are inflicted on someone are not to be extended to empty possibilities, but are to be measured as they are usually appraised from the common estimation of men. Thus, for example, it would be ridiculous to propose to him who killed another's hen a calculation of how many chicks could in the course of time have been born from this hen. Account must likewise be taken of accidents in which things can perish; likewise of those expenses which would have had to be made for the sake of repair, etc.

2. As regards industrial fruits, these can always be retained. Therefore if someone has stolen small trees and planted them, he must restore not the trees which have grown, but the price of the small trees; which price, indeed, must be greater. Roman Law says that a double price must be paid (Lehmkuhl, Cas. cons., n. 654).

C. Rights as regards expenses. A possessor of bad faith can deduct, besides industrial fruits, both necessary and useful expenses; indeed even merely pleasurable ones, where, with the substance intact, they can be separated.⁰⁴ - The reason is that he is held to no more than that he preserve the owner unharmed; but unless he can deduct expenses, the owner would make a profit, receiving more than is his. Except the case in which, as a punishment of the delict, he would be condemned to lose all expenses, at least non-necessary ones (III, n. 618).

942. Questions. QUAER. 1. 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, it must be restored by the last possessor. If he fails, the robber is held for the price of the thing. But if neither satisfies, the rest must pay the price of the thing in equal portions. Finally, if the rest fail, each one is held to the whole. - 2. As regards the fruits and damages of the thing, each is held to compensation for the part of time for which he detained the thing. If the others do not restore for their share of damaging and fruition, the reparation of the whole damage lies upon each one, in proportion to the time elapsed from the day on which they successively became unjust possessors of another's thing.

QUAER. 2. Whether he who knowingly buys another's thing from a thief can return it to him in order to recover the price?

Resp. Doctors more commonly deny, as St. Alphonsus testifies. But the holy Doctor himself holds the affirmative opinion as absolutely probable and perhaps more probable. "The reason is that, although that man sinned by buying the thing in bad faith, nevertheless after the purchase he has the right, just as the buyer of good faith, to rescind the contract," nor does he become guilty of the damage inflicted on the owner, because by returning the thing to the thief he does not place it in a worse state than he himself found it, from which, moreover, he was not held from justice to withdraw it (III, 570).

But otherwise, if, because of longer detention, the things could no longer be recovered by the owner.

943. From these things resolve: 1. He who carried another's grain elsewhere and sold it more dearly than the owner would have sold it is not held to restore that increase of price. But if he sowed the same grain in his own field, he is held only to return similar grain, so that the owner may be preserved unharmed. Likewise, if someone puts another's eggs under his own hen to be incubated, he is held to restore only the value of the eggs (III, 609, 8).

2. If someone accepts another's thing mixed with the thief's things, for example another's grain with the thief's grain, the one accepting, although in bad faith, is not held to restitution if the thief is equal to restoring; because what was accepted was now the thief's own, as we said in n. 888, 4. But if the thief for that reason would not be equal to restoring, the one accepting is held to restore, because through that acceptance he efficaciously influences the alienation of the thing, with detriment to the creditor (III, 612).

3. He who feigned himself poor in order to extort a notable alms is held to restore this to the owner or to other poor persons. Otherwise, if the alms had been small, or if one truly poor feigned himself upright (III, 622).

4. Those who on account of simulated poverty obtain pensions destined for poor youths who aspire to the priesthood are held to restitution, because they defraud the will of the benefactors, since they can comfortably complete the course of studies at their own expense. And the same must be said of those who are indeed poor, but apply themselves to studies for another end; but not of those who, not excluding at the beginning the intention of entering the clerical state, afterward, the matter having been considered more maturely, recognized that they were not called to such an institute of life; for these are sufficiently in good faith, and the benefactors themselves do not wish someone not called to creep into the priesthood (Konings, n. 703, 7).

944. NOTION. A possessor of doubtful faith is he who positively, because of probable reasons, doubts whether the thing which he accepts or possesses is his or another's (I, n. 37).

PRINCIPLES. I. Every possessor of doubtful faith is held seriously to inquire, so that thus he may lay aside his doubt. The reason is that, if he contemns a doubt of this kind, he exposes himself to the danger of retaining another's thing and of frustrating another at least of the hope of ownership.

Otherwise, if the reasons are slight; because these cannot weaken the moral certitude which possession itself begets (cf. n. 44).

II. While the inquiry is being made, the possessor of doubtful faith cannot abuse the thing as proprietor; nor can he alienate it, unless he has forewarned the new possessor of the existing doubt. But he can accept it, not with the intention of retaining it, as is clear, but with the intention of restoring it to the owner if, after diligent inquiry, the latter appears (Bouvier, de Jure, P. II, c. 2, a. 1, § 3).

But because doubt can arise when possession itself begins, or when possession has already begun, two things come to be discussed as regards restitution itself.

945. 1. He who in doubt has begun to possess, disturbing another from his possession, for example by taking away from the possessor a litigated thing, is held to restore the whole thing to him, unless it is established that he began possession with bad faith. For in doubt the condition of the possessor is better (Lugo, disp. 17, n. 80).

2. He who has accepted a thing with a title of itself legitimate, for example of donation or purchase, but with doubt whether it is another's and possessed in good faith by the predecessor, if after inquiry he remains wavering, is held to restore, in proportion to the doubt, to the probable owner, if he is known; or to the poor, if the owner is unknown.

The reason is that, on the one hand, possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole thing for himself; on the other hand, it does not seem equitable that he be obligated to restore the whole, since it is doubtful whether the thing is another's (III, 625). - Civil laws and the consensus of all cannot be invoked here so that possession of fact may become useful for such a possessor; for from the beginning positive good faith was lacking.

3. If none of the litigants in fact possesses the thing itself, and the doubt is equal, the thing, or its price, is to be divided equally between them. But if the doubt is unequal, it seems it must be divided according to the proportion of the doubt (Lacroix, l. 3, P. 2, n. 566).

Notice: 1. He who has accepted a thing or right, for example an inheritance, from a possessor of good faith, and has begun to possess with doubt, can protect himself by the right of his predecessor and conduct himself as if he were a possessor of good faith to whom doubt has supervened. - 2. He who doubts negatively whether his predecessor was in good faith can use the axiom: "No one is presumed evil unless he is proved so." - Otherwise, if he has found him in bad faith and doubts whether he began his possession with such a disposition of soul; because "once evil, he is always presumed to be evil," according to the 8th Rule of Law in the Sext (I, 36, 37). Recall the things said in n. 895.

946. 1. A possessor of good faith, to whom a doubt arises concerning a possessed thing from a probable motive, for a slight motive is to be contemned, if, due diligence having been used, he recognizes that the thing is another's, is held to restore it, together with that in which he has become richer, as a possessor of good faith.

2. If the doubt perseveres equal on both sides, or if the possessor has for himself a probable opinion and against himself a more probable one; or for himself mere possession, and against himself an opinion only probable: he can still retain the thing for himself until it has not been morally established, that is, by a proof overcoming the presumption of possession, that the thing is another's. - The reason is that as soon as the possession itself is certain and legitimate, that possession, although alone, by itself begets a certain presumption concerning the justice of possession, which outweighs all non-convincing reasons and yields only to truth (I, 35, 36). Cf. the things said in n. 45.

3. A possessor of another's thing who, after doubt has arisen, culpably has neglected to inquire, is held, if afterward the presumed true owner of the thing can no longer be found, to restore something, either to the presumed owner or to the poor, if the owner is uncertain. The reason is that "since he himself culpably deprived the owner of the hope which the owner could have had toward the thing, and that hope was indeed estimable by price, now certain damage has been inflicted on the owner, who also certainly possessed that hope." Thus the truer opinion, which St. Alphonsus defends (I, 37) against Tamburini (cf. Lehmkuhl, I, 1144).

Nevertheless restitution is not to be made in proportion to the doubt, but less and perhaps very much less; because the detainer of the thing is in a better condition, on account of the right of possession which favored him and still favors him; for possession of the thing is valued much more highly than possession of the hope.

Note. In one case the opinion of Tamburini perhaps could be sustained: if namely the possessor of another's thing doubts only in an indeterminate way whether the thing is another's. Cf. Genicot, I, 534, v. fin.

947. On doubtful payment. To what is a debtor held if he seriously doubts concerning payment having been made?

Resp. There are three opinions. The first opinion says that such a debtor is no longer held to payment, provided he himself did not culpably cause the uncertainty. Thus among the more recent authors, Waffelaert, Genicot, Noldin. Their reason is that, on the one hand, the debt here and now is uncertain, and on the other hand, no one is to be despoiled of his own thing unless the debt is established. - The second opinion judges that all things are to be arranged in proportion to the doubt. Marres, Ballerini, Lehmkuhl defend it. Lehmkuhl (I, 1147) explains the reason of this opinion thus: the value of that debt is in the peaceful possession of neither, neither of creditor nor of debtor, but is a thing concerning whose possession and property each contends with the other; hence, in proportion to the doubt, it is to be divided between the litigants. - Finally, the third opinion, which is that of St. Alphonsus (I, 34; H. Ap., I, 20), affirms that a debtor who truly doubts whether he has paid must pay the whole. Cf. also III, 700; H. Ap., X, 120. Lugo, Suarez, Vasquez, Sanchez, and others teach this opinion. The reason: the creditor, who is in possession of his credit, has a certain right to recover the whole. If the debtor, who doubts about payment, refuses to pay, he always exposes himself to the danger of injuring the creditor's certain and earlier right; which cannot be done, as we said in n. 84. For in doubts of a perilous fact, the safer thing must be followed, although our liberty is in some way restricted.

We said: 1. Who truly doubts. For the debtor would not be held to paying if, from things ordinarily or contingently by law occurring, he believes with moral certitude that payment has been made. Presumption will greatly assist here in practice.

2. He must pay the whole, namely in the case in which he alone doubted. But if the creditor himself also doubted concerning his right, the debtor would be held only to a part, in proportion to the doubt, because possession on each side is weak. "Nevertheless Laymann adds that he would not dare to condemn the creditor if he received the whole" (I, 34).

Note. The reason adduced by the holy Doctor is directed against the two contrary opinions, which for this reason are rejected by us. The first opinion especially does not appear safe. Lehmkuhl (l. c.) rightly says: "There are some who, in the case of doubtful payment, dispense from every further obligation; - which cannot be sustained by solid reason."

721. General Principle. - The owner alone of the thing has per se the right of possessing it, nor does he lose dominion of the thing into whosever hands it may at last come. - It is said, per se; because any other possessor, even one of good faith, has the right of possessing the thing only by accident and from invincible error. - But from this general principle these four very well-known axioms flow of themselves.

1° The thing cries out for its owner, that is, to the owner belongs the strict right of pursuing his thing, in whatever state and in whosever possession it may be, by a real action, which they call juridical vindication.

2° The thing fructifies for the owner; because use and fruition are necessarily included in the idea of perfect dominion.

3° The thing naturally perishes for the owner; because, with the object of dominion disappearing, dominion itself also vanishes. If nevertheless it still exists in an equivalent, the owner can seek that equivalent by a personal action.

4° No one ought to be enriched unjustly from another's thing; in other words: The measure of restitution is the quantity of another's thing detained without cause. The reason is clear; for to the owner alone of the thing belongs the receiving of utility from the same.

But these principles, besides the fact that sometimes according to diverse laws of places they receive diverse application, are moreover modified according to the diverse condition of the possessor. For one can possess another's thing either with good faith, or with bad faith, or with doubtful faith. Therefore it must be said 1° concerning the possessor of good faith; 2° concerning the possessor of bad faith; 3° concerning the possessor of doubtful faith.

A possessor of good faith is he who invincibly does not know that the thing possessed by him is another's, or prudently judges that it is his own, for example because he acquired it by a title of itself transferring dominion, suppose inheritance, legacy, donation, or purchase. But it is supposed that he has not yet prescribed the thing possessed; for otherwise he would no longer be the holder of another's thing, but of his own.

722. Principles. - I. A possessor of good faith, as soon as he knows that the thing possessed by him is another's, is bound to restore it to the owner, still existing in whole or in part or in its advantage; otherwise he retains another's good while the owner is reasonably unwilling, and therefore violates his strict right. - Thus all.

II. A possessor of good faith is bound to absolutely nothing, if, while good faith endures, he consumes, loses, or even destroys another's thing, provided he has not become richer from it. For he is not bound by reason of the thing received, which no longer exists; nor by reason of unjust acceptance, consumption, or destruction, because he possessed the thing in good faith. This is valid also if he deliberately destroyed the thing, or if it perished from his negligence. The reason is that he inflicted injury upon no one by destroying or neglecting the thing which he believed to be his own. It is confirmed also by positive law. For thus by Roman Law: "He who neglected as if his own thing is subject to no complaint."

I said: provided he has not become richer from it; because that in which he was made richer would succeed in the place of the thing. But it is against natural right that someone be enriched with the injury of another, according to rule 48 of Law in the Sixth. - In doubt whether he has become richer, he is bound to nothing. L. IV. 603; H. A. Tr. X. 55.

723. Questions. - Query 1° Is a possessor of good faith bound to restore the fruits which he perceived during good faith?

Resp. The fruits must be distinguished. For 1° some are natural, which by the benefit of nature come from a thing without any estimable work of man, as grasses, etc. 2° Others are industrial, having arisen from man's work without any estimable productive concurrence of the thing. 3° Others are mixed, or partly natural and partly industrial, as crops. 4° Others are civil, which are not fruits properly so called, but are held as such by Law through a certain analogy with true fruits, as the price of leasing a house.

I say: 1° A possessor of good faith is not bound to restore merely industrial fruits (under which probably also interest by occasion of a loan is included. L. IV. 759), since by reason of industry they belong to the possessor.

I say: 2° From natural right a possessor of good faith must restore all other fruits, whether natural or civil, still existing, and, insofar as he has been made richer from them, even those consumed, expenses and labors nevertheless being deducted. The reason is that from natural right fruits belong to him to whom the fruitful cause itself belongs, since they come from the thing itself, according to the axiom: The thing fructifies for the owner. (g) p. 481.

724. • Query 2° To what is a possessor of good faith bound if he has given another's thing to another?

Resp. He is bound to nothing if he has not been made richer at all, as follows from the things said above in principle II. Otherwise he must restore that in which he has been made richer, as is established from principle I.

Query 3° Once the donation has been made and the error detected, is he bound to warn the donee, that he restore the thing to the owner, or the owner himself, that he may be able to recover his thing?

Resp. He is certainly bound from the general principle of charity, if he can furnish this without grave damage to himself.¹ Whether also by reason of justice? There are those who affirm it on account of the obligation which the author of even merely material injustice incurs. See n. 749. q. 3°.

725. • Query 4° To what is a possessor of good faith bound if he has sold to another a thing bought from a thief?

Resp. 1° In the case of eviction, that is, if the owner has vindicated his thing from the buyer (n. 988), the seller is bound to return the price to the buyer. The reason is that the sale is altogether void from natural right. Therefore, when eviction intervenes, the contract must be resolved, and the buyer acquires recourse by the fact itself against the seller; for by handing the thing over to the buyer he implicitly obligated himself to repair the damage, if perhaps eviction would be future. Except: 1) If the seller has not been made richer from the price (in the sense to be declared below n. 989). 2) If the profit which he perceived by selling is the fruit of industry. 3) If in good faith it was expressly agreed concerning not restoring the price.² - The same must be said if another's thing has passed into the hands of various possessors by an onerous title. For if the last possessor is compelled to return the thing to the owner, both he and the individual buyers have the right of pursuing their seller, so that they may recover the price paid. - Yet this is not valid, that is, the seller, in no respect made richer from it, is not bound to restore the price to the buyer if the buyer spontaneously, or not evicted, restores the thing to the owner and thus impedes the seller from being able to recover his price.¹

Resp. 2° Outside the case of eviction the seller is bound to nothing unless he has been made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as altogether void. For although through it dominion of the thing is not transferred to the buyer, dominion of the price is nevertheless transferred to the seller. And this man indeed, even if later he detects that the thing sold is another's, in the case in which he can no longer recover the price for which he bought the thing, is not bound, with grave damage to himself, either to warn the owner so that he may be able to recover his thing, or to indicate to the buyer that the thing is another's. The reason is that he no longer has the thing, nor was he the formal cause that the owner was deprived of his thing.² Cf. what was said n. 724. q. 3°.

726. • Query 5° To what is a possessor of good faith bound if he has sold to another a thing received gratuitously?

Resp. 1° In the case of eviction the same resolution is valid which was given in the preceding case, n. 725. Resp. 1°.

Resp. 2° Outside the case of eviction, when namely the thing cannot be recovered by the owner, whether because the last possessor consumed it, or because he no longer appears, the seller, according to the common opinion, must pour back to the owner the whole price received from the buyer, if and insofar as he has been made richer from it. The reason is that one truly made richer from the price suffers no loss on its occasion; while on the contrary the owner, unjustly despoiled of his thing, is compelled to undergo the whole damage of the thing. Hence this man must be preserved harmless from the profit which the seller perceived without any title.³

727. • Query 6° If someone in good faith bought another's thing at a moderate price and sold it at a greater price, is he bound to return the profit perceived to the owner?

Resp. 1° Negatively, if that profit is to be attributed to extraordinary industry, for example if he went to another place by notable labor in order to find a suitable occasion of selling the thing more dearly, etc. The same must be said if, during the time of detention, the thing was made better by the care of the holder.

Affirmatively, on the contrary, if the thing increased from its own nature or from the common estimation of men, but not from the industry of the holder, because in that case it increases for the owner.

Resp. 2° In other cases, however, it is controverted. Some affirm it, because the possessor has been made richer from that profit. - Billuart, etc.

But others deny it more commonly and more probably, because that whole profit seems to be the fruit of the possessor's industry. - Thus Lugo,¹ and others sufficiently commonly, as Billuart admits.

728. • Query 7° To what is a possessor of good faith bound if he has sold another's thing and it perished in the hands of the buyer?

Resp. 1° If he had the thing by an onerous title, more probably he is bound to nothing. For 1° he is not bound by reason of the thing, since he no longer has it; 2° nor by reason of damage, since he is not the culpable cause why the owner can no longer vindicate it for himself; for he bought and sold in good faith.

Resp. 2° If he had the thing by donation, it is controverted.

The 1st Opinion teaches that the price must be restored to the buyer. For the seller cannot keep it, positing that from it he has become richer. From elsewhere he is not bound to return it to the owner, because the thing perished for the owner. Moreover, if the first possessor was of bad faith, as often happens, he is bound concerning the value of the thing toward the owner. From elsewhere, however, unless by law the sale of another's thing was perhaps valid, the buyer has the right of recovering his money. - Bouvier, Carriere, etc.

The 2nd Opinion holds that the price, still existing in itself or in an equivalent, must be restored to the owner. The reason is that, since he has been unjustly despoiled of his thing, he must be made harmless. But since the thing no longer exists, it is equitable that he receive that by which the thing is represented. But it is represented by the price which the seller has. Besides, the nullity of the sale in no way harms the buyer; because it harms him no more than if the contract were valid. But if it were valid, he could repeat nothing. Except if the thing would equally have perished with the owner, for example from an intrinsic defect; for then it would have perished for him.

The 3rd Opinion says that the seller can retain the price for himself, because he does not have to restore it either to the owner or to the buyer. And 1° not to the owner, because the thing perished for him in every case; 2° not to the buyer, because the money which the seller received does not precisely represent the thing, but rather the obligation which he took upon himself of preserving the buyer harmless in the case of eviction. But the buyer was not evicted; therefore the seller can retain the price by reason of an abandoned thing. This opinion counts few patrons, and does not seem sufficiently probable. See S. Alph., L. IV. 609. under 5.

Since the 1st and 2nd opinions are equally probable, the seller can restore either to the owner or to the buyer. Except: 1) if the thing would equally have perished with the owner, for example from an intrinsic defect or from age; for then in reality it would have perished for him; 2) if the owner had already been preserved harmless by the thief or another possessor of bad faith. In each case the buyer alone would have right.

729. • Query 8° What must be done if among various possessors of good faith one of bad faith was present?

Resp. That circumstance changes in no respect the condition of the other possessors, whatever place in the series that possessor finally occupied. For the same obligation lies upon each one toward the owner as if that possessor had been of good faith, since his bad faith in no way redounds to the others. But that man must be treated as will soon be said concerning possessors of bad faith.

Query 9° What must be done if a possessor of good faith indeed detects that the thing possessed by him is another's, but the owner does not appear?

Resp. Concerning this it must be established as concerning a thing found. - Recall what was said n. 655. 656.

730. • Query 10° Can a possessor of good faith subtract necessary expenses which he has undergone in conserving or increasing the thing?

Resp. He can deduct all necessary expenses; indeed also useful expenses, namely those which conserve the thing and make it better; otherwise the owner would receive more than what is his own. But not pleasurable expenses; because it is not equitable that the owner pay expenses which bring no utility to himself. Understand according to the things to be said n. 732. III.

But among expenses there are not to be computed fortuitous events, nor damages caused by accident. Thus, for example, if in cultivating another's field your horses have perished, the value of the horses cannot be deducted, but only the estimation of the work done by the horses for the cultivation of the field.

731. • Query 11° Can one who in good faith bought a stolen thing return it to the thief in order to recover the price?

Resp. 1° Negatively, if the owner appears asking from him his own thing; for then he must return it to him, even with the loss of his own price, because by natural right the owner can occupy his own thing wherever he finds it. Yet an action is given to the buyer against the thief. (h) p. 481.

Resp. 2° If the owner is indeed known, but unaware of the thing, the buyer, with another way of indemnification shut off to himself, can send the thing back to the thief, so that he may recover the money; both because the buyer is not bound to preserve the thing for the owner with his own damage, and because no one is forbidden an action which of itself is necessary and directed to repairing his own damage, although indirectly and by accident damage may come from it to another.¹

Resp. 3° If the thief, or another seller, does not appear, or does not wish to return the money, the buyer, the owner being known, cannot sell the thing to others, nor convert it to his own uses so that he may preserve himself harmless, because he is not the owner of the thing; but he must return it to the owner, notwithstanding the loss of the price. But he preserves recourse against the seller. But if he cannot find him, the damage must be undergone by himself. (h) p. 481.

A possessor of bad faith is he who knows that the thing which he accepts or possesses is not his own.

732. 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, if you except industrial fruits, all that in which he has been made richer, as was said concerning the possessor of good faith.

II. He is bound besides to compensate every damage inflicted upon the neighbor from unjust acceptance, even if he has not been made richer. The reason is that by an acceptance formally unjust and per se efficacious of damage, he violated the neighbor's right. But commutative justice requires that the violated right be repaired integrally. Therefore...

III. He can nevertheless retain all industrial fruits and deduct expenses both necessary and useful; indeed even merely pleasurable ones, where they can be separated with the substance of the thing untouched, unless in penalty of the delict he has been condemned to lose the expenses.²

733. Questions. - Query 1° Is a thief who has stolen a thing otherwise certainly about to perish, for example by fire, bound to restitution?

Resp. Affirmatively, the expenses made with the price of the work used to free the thing from danger nevertheless being deducted. The reason is that that thing did not cease to belong to the owner, although it was exposed to the greatest danger. Except, if he destroyed the thing; or even probably, if the thief consumes a thing remaining in certain danger, for example edible or drinkable things already about to perish by fire; because fault alone does not oblige to restitution where damage did not intervene.¹ - Lessius.²

734. • Query 2° Is the thief bound to restitution if the stolen thing perished with him?

Resp. When the thing perishes, the obligation of restoring remains or ceases according as, while it perishes, the theft should still or should not be called the efficacious cause of the damage; for fault alone does not produce an obligation of restitution where in fact damage has not followed from it. Hence:

1° The value of a thing perishing with the thief, whether by his own fault or another's fault, or even by fortuitous event, must be returned whenever, if left with the owner, it either would not have perished, or would not have perished except by the injury of another; for then the cause of the damage truly is the thief, who besides by stealing the thing took upon himself its whole risk.³

2° Resolve the opposite if, without anyone's fault, it perished with the thief, whether from its intrinsic defect or by fortuitous event, whenever it would equally, namely at the same time and by a common danger, have perished with the owner; for then not the theft, but the defect or the fortuitous event itself is the efficacious cause of the damage. - Thus commonly.⁴ Lugo,⁵ against Concina, etc.

I said: a) without anyone's fault; for if the thief or another consumed or destroyed the thing, even one certainly about to perish soon in a common danger, before that danger, the theft is again rightly judged the efficacious cause of the damage. Except probably if this common danger, in which the thing, without hope of salvation, would have perished even with the owner, was already previously known to threaten; for the thing, considered in that state and previously known, becomes of no value or certainly of very slight value to the owner. See n. 733.

I said: b) if the thing would have perished at the same time with the owner; because if it would have perished earlier, then it was saved for the owner from the earlier danger, and had to be restored to him. And therefore by not restoring, the thief remained the efficacious cause of the damage. Resolve the same if it would have perished later with the owner, because the personal action of repairing damage is not taken from the owner by a following danger. Nevertheless probable in this case is the opinion of S. Alph.,¹ excusing a thief from restitution if the thing would have perished equally with the owner in the same common danger, and in that case holding him bound only, by reason of delay, to restore the fruits which the owner would have perceived from the thing. The reason is that delay was indeed the cause why the owner is deprived of fruits, but not why he is deprived of the thing, of whose loss the danger was the cause.²

I said: c) by the same common danger, because where the danger is diverse, even if simultaneous (fire and inundation), the destruction is rightly attributed to the thief, since without his theft the thing would not have been exposed to this danger.² (i) p. 481.

735. • Query 3° To what is a possessor of bad faith bound when the thing has had various value during the time of detention?

Resp. Let the general rule be: A possessor of bad faith should not become richer from another's thing. - The thing, if it increases, increases for the owner. - Let the damage unjustly inflicted be compensated to the owner. - Hence:

1° A thing made worse with the thief (a younger horse taken, but now growing old) must be restored according to the value which it had when it was taken.

2° If the thing increased with the thief (a lamb into a sheep), it must be restored as it increased, expenses (n. 732. III.) being deducted.

3° If the thing increased with the thief and afterward decreased, the thief is bound to return the whole greater price, even in that case in which the owner would have consumed the thing at the time of lesser price; for the thing increased for the owner, and the thief, by not restoring then, was the cause of that greater damage. H. A. Tr. X. 78.

4° If the thief consumed the thing at the time of lesser price, although it was to be preserved by the owner until the time of greater price, he is not bound to restitution of the increase, provided he restored the price at that time at which the owner could have bought a similar thing for himself at that same price.¹ See n. 738, 3°.

5° If the thief sold or consumed, at the time of greater price, a thing not to be preserved by the owner, he is bound to return that price to the owner, although the owner would have done something else with the thing; because the thing increases for its owner.²

In practice, since nearly 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 theft is to be urged.

736. • Query 4° Besides the stolen money, must the thief also restore INTEREST (the interest)?

Resp. Affirmatively, if it is established or presumed - as today, if the sum of stolen money is sufficiently notable, it almost ought to be presumed - that the owner would have perceived that gain, because this man must be made altogether harmless with respect to the possessor of bad faith. Otherwise, however, probably in the other hypothesis, because it is not established that the owner has a right to that increase.

Query 5° Are they bound to restore who, in order to receive alms, pretend that they are poor; or true paupers who say that they are upright, when they are not?

Resp. to the 1st. Affirmatively. The reason is that these have no right to alms; for those who bestow them intend to assist true paupers only. Therefore restitution must be made either to the giver, or at least to true paupers. More probably it suffices if restitution is made to paupers. Yet restitution does not seem to be urged if it is a question of very modest alms, such as are given door to door; because those bestowing them are less unwilling with regard to them. - Thus commonly.³

Resp. to the 2nd. Negatively, generally, because need alone, not uprightness, is the condition to which the donor attends or is presumed to attend. - Thus commonly.

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

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

Resp. 2° As to the fruits and damages of the thing, individuals are bound to compensation for the part of the time during which each one detained the thing. But if the others do not compensate for their part of damaging and fruition, reparation of the whole damage lies upon individuals; namely, each one of them is bound to repair the damages, not those which followed before he himself became possessor of another's thing, but those which followed afterward. - Thus commonly.

Query 7° Can he who knowingly buys another's thing from a thief return it to him in order to recover the price?

Resp. It is controverted. S. Alph.¹ affirms; because although this man sinned by buying the thing in bad faith, yet after the purchase he has a right, not otherwise than a possessor of good faith, to rescind the contract. Nor does he, by returning the thing to the thief, place it in a worse condition than that in which he himself found it, from which besides he was certainly not bound by justice to free it.

738. Resolutions. - 1° A possessor of bad faith is bound not only to compensate the damage emerging for the owner from the lack of his thing, but also every profit ceasing in confused manner at least foreseen; namely not only that which the owner in reality lost on account of the lack of his thing, but also that which he would have perceived in a licit manner.

2° He who transported stolen grain to another place, where he sold it for more than the owner was going to sell, is not bound to assign the increase of price, as being sought by his own special industry (n. 732. III), to the owner.² - For the same reason, if he sowed the same grain in his own field, he is bound only to return similar grain, so that the owner be preserved harmless. Likewise he who places another's eggs under his own hen to be brooded over is bound only concerning the value of the eggs.

3° If someone has stolen wheat which the owner was preserving to be sold at a time of greater price, and consumed it at a time of lesser price, he is bound to restore that price which the owner was expecting, unless perhaps restitution is made so early that the owner can buy similar wheat at the lesser price and reserve it without inconvenience until the time of greater price.

4° If someone has killed a stolen lamb, or has consumed another thing of this sort taken by theft, he is bound to pay only that money (at least more probably) which corresponded to the value of these things at the time of killing or consumption, unless perhaps the owner could not at once have bought a thing of the same value with the same money, and at the same time wished to preserve that thing so that he might obtain a greater sum of money from its sale.¹

5° The assessment of the quantity to be restored, on account of the cause alleged in this number under 1°, often can be made only according to the judgment of a prudent man. Besides, when it is a question of theft of a small and very common thing, as of a hen, etc., this alone, or its value, must be returned; for there can be no question of damage emerging or profit ceasing, while the owner could easily buy a similar thing. (j) p. 481.

A possessor of doubtful faith is he to whom a positive doubt arises whether the thing which he accepts or possesses is his own or another's.

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

II. If, after diligent inquiry has 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 cause, or doubt, the condition of the possessor is better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and gives 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. - S. Alph.,² Lugo,³ Lacroix,⁴ Carriere,⁵ and others commonly, against some who say that the thing must be divided according to the proportion of the doubt.

III. If doubt preceded possession, a distinction must be made. For one who began to possess in doubt by despoiling another of his possession is bound to restore the whole thing to the prior possessor when it is not established that this man began to possess the thing in bad faith; because in an equal cause his condition is better, as being that of the possessor. - Lugo,¹ Carriere.²

But one who received the thing by another title, for example of purchase, and after diligent examination still doubts whether he from whom he received it is its owner, 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 from elsewhere does it seem equitable that he be bound to restore the whole, since there is doubt whether the thing is another's. - S. Alph.,³ Lugo.⁴

740. Questions. - Query 1° To what is he bound who accepted some thing in bad faith, thinking it was another's, and afterward doubts whether the thing is his or not?

Resp. He is to be equated to him who began possession with doubtful faith; for the prior false estimation is found, and therefore 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.

Query 2° What if such a possessor neglected to inquire from the beginning, and afterward the owner of the thing can no longer be found?

Resp. More truly, something must be restored to the poor according to the proportion of the hope which the owner could have had of recovering his thing. Generally that hope does not reach half the price, but is of much lesser value.⁵ - Lugo, Lacroix.⁶

741. • Query 3° To what is a possessor of doubtful faith bound 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 bound not only to return the thing to the owner, but also to repair all damages to him. - Carriere.⁷

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

742. • Query 4° To what is he bound who occupied a thing possessed even by an uncertain owner, as he knew; likewise he who first occupied a thing while doubting whether it had been abandoned by the owner?

Resp. to the 1st. The thing must be divided equally with the probable owner; for possession favors neither one. Cf. n. 60. 3°.

Resp. to the 2nd. If, after inquiry has been made, no earlier owner of the thing, not even probable, can be detected, he can have the thing as truly abandoned by the owner, and then, after doubt has been laid aside, acquire it for himself by legitimate occupation in good faith.¹

Query 5° Is a possessor of doubtful faith who began to possess in good faith bound to restitution if, after inquiry has 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. Moreover, until another proves his certain right, the axiom is valid: The condition of the possessor is better. But the other can prove a certain right, that is, one morally such, only by most probable reasons.²

Query 6° Is a debtor, in doubt concerning the completed payment of a debt, bound to pay integrally or in part?

Resp. See n. 803.

743. Resolutions. - 1° If you have possessed another's thing in good faith, and, when doubt supervened and remained after inquiry, relying upon the principle of possession you consumed it, but afterward the owner unexpectedly appears, you will be bound to restore only that in which you have been made richer.³

Note. - 1) As long as it remains morally possible that a certain owner may afterward appear, the aforesaid possessor ought to be so disposed in mind that, if afterward before the time of prescription the owner is certainly detected, he restore the thing to him, or if he has consumed or alienated it, its price, and this even if he has not been made richer. Thus Lugo⁴ against some. 2) The same possessor ought, if he sells the thing, to warn the buyer concerning the existing doubt and the danger of eviction.⁵

2° They are not to be exempted from restitution who buy things from thieves or fraudulent bankrupts while doubting concerning the legitimate possession of these things, and purposely inquire nothing lest they have certitude of fraud; for these act not with doubtful faith but with bad faith, since affected ignorance is equated to knowledge. Mar. p. 260. n. 47. III.

3° "Croix notes, l. 3. p. 2. n. 562, with Vasq., Laym., Pal., Sanch., Mol., etc., and Roncaglia thinks it not improbable, ... that when a possessor (even one who began to possess with doubt) has had the thing from a possessor of good faith, if afterward diligence becomes impossible, he is bound to restore nothing; for he then legitimately succeeds into all the right of that man." S. Alph. L. I. n. 57. Notat II.

[The possessor in good faith is he who invincibly does not know that the thing possessed by him belongs to another. In civil law, he is called a possessor in good faith who possesses as if he were owner, under a title translative of ownership, whose defects he does not know. Whence his good faith ceases as soon as the defects of the title are uncovered³⁵⁹ . — It is evident that such a possessor injures the right of the true owner only by an injustice merely material, but not formal.] ³⁵⁹ Ibid., art. 550.

Note 1° for the present and following articles that, when we come to the part of restitution, not only the thing received but also the fruits of the thing are distinguished (but a fruit is the utility gathered from a thing, after expenses have been deducted), into fruits of four kinds, namely merely natural, merely industrial, mixed, and civil.

Merely natural fruits are those which nature bears spontaneously, with no human labor cooperating, or at least only light labor, such as the grass of meadows, the fruits of trees, the offspring of animals, etc. Merely industrial fruits are, on the contrary, those which the labor or industry of men alone produces, not the nature of the thing, although the latter can concur as an instrument of the working and industrious man. Such is the gain from trafficking in money, wine, grain and similar things sterile of themselves; likewise a work of art wrought with another's instrument is reckoned the fruit of industry, not of the instrument.

Mixed fruits are those for producing which the nature of the thing and the industry of man concur equally, or nearly equally; for here what differs little seems to differ nothing, such as crops, wine, oil, butter, cheese, etc.

Civil fruits are so called not because they are properly fruits, but because in law they are reckoned after the manner of fruits. Such are the prices of things let out, as houses, ships, beasts of burden, fisheries, hunts, etc. They can be reduced to mixed fruits, because to those there concurs not only industry, but the thing itself, horse, house, etc. Where there is doubt of what kind fruits are, recourse must be had to the judgment of the judge or of a prudent and learned man.

Note 2°. But, since in the restitution of fruits the expenses are usually deducted (for fruit, as I already said, is the utility from a thing after expenses deducted), expenses must be distinguished of three kinds. Some are necessary, without which the thing would either have perished or become worse : as the repair of a falling building, food for animals, etc. Certain ones are useful, which although they are not necessary for the conservation of the thing, nevertheless conduce to its betterment and increase its return, as plantings of trees, conduits of water, the addition of a mill, etc. Others are voluptuary or voluntary, which do not increase the fruit, but adorn its appearance only, as fountains, marblings, paintings, statues, etc. On account of these the thing indeed may be valued at more, yet because it does not yield more fruits, therefore they are called voluptuary or voluntary expenses. Under the character of expense, however, must be understood the labor and industry of the possessor.

Note 3°. Finally improvement, like deterioration, is twofold : one intrinsic, as when the thing changed in itself becomes better or worse, v. g., if a colt become a horse, if a lean ox become fat, or on the contrary a fat one become lean; extrinsic, when the thing unchanged in itself is nevertheless valued at more or less, on account of the abundance or scarcity of buyers or goods, or by authority of law, v. g., grain which yesterday was worth three today is worth four, or on the contrary.

[Principles. 1° A possessor in good faith ought not to grow rich from the thing of another. So all say³⁶⁰ . — Excepted is the case where the thing has already been legitimately prescribed : in which case he does not grow rich from the thing of another, but from a thing which by force of law has been made his own. ³⁶⁰ S. Lig., lib. IV, n. 607.

2° A possessor in good faith ought, per se, to be kept unharmed, that is, as he can acquire nothing from the thing of another, so he ought to lose nothing, because he is not at fault. — I said, « per se, » because, in a case of conflict between possessor and owner, the owner of the existing thing is stronger in right; laws however, on account of the common good, sometimes favor the owner of the thing, sometimes the possessor.]

These things noted,

I say 1° : The possessor in good faith is held to restore insofar as he possesses from the thing of another and its fruits or profit : so that the quantity of the thing possessed and of its existing fruits, or of the profit thence arising, be the measure of the restitution to be made; because this is required and suffices for restoring equality according to the form of commutative justice. From this general assertion and rule I deduce the following conclusions, first concerning the thing, then concerning the fruits. Whence

I say 2° : The possessor in good faith, as soon as he understands that the thing he possesses belongs to another, is held to restore it while it still exists, in whole or in part, unless perchance he has prescribed it within legitimate time.

The reason is plain, because he who has beyond what is his own ought to be deprived of it and it given to him who lacks it; otherwise justice is not saved, and he becomes an unjust detainer³⁶¹ . ³⁶¹ Here q. 62, a. 6, c.

But if he consumed the thing, or it perished by chance or even through his fault, he is held to restore nothing, except that by which he was made richer by it. — The first part is plain, because he is not bound by reason of a thing received, which he no longer has, nor by reason of an unjust acquisition or alienation, because he possessed in good faith. And although perhaps he sinned by squandering it prodigally or otherwise, he did not nevertheless sin against commutative justice, since he disposed of a thing which he invincibly thought was his own. — The second part is also plain; because that by which he was made richer succeeds in place of the thing, and it is against natural law that anyone grow rich with injury to another, according to this rule of law 48, in 6° : « No one ought to be enriched with the injustice or loss of another. » Hence

I say 3° : The possessor in good faith is held to restore all natural, mixed and civil fruits still existing, unless perchance he has prescribed them, however, with the necessary and useful expenses deducted, and with the estimation of the industry and labor.

The reason is that they are fruits of the thing; but the thing fructifies to its own owner.

Nor does it stand in the way that mixed and civil fruits are not merely fruits of the thing; for by the very fact that the part corresponding to the expenses and the estimation of labor and industry is deducted, the whole that remains over is fruit of the thing. Nor again does it stand in the way that perhaps the thing would not have so fructified with the owner; for that pertains to the good fortune of the owner, because wherever the thing fructifies, it fructifies to its owner.

[Indeed, attending to natural law alone, all fruits of the thing, except industrial ones, ought to be rendered to the owner, because the thing, wherever it may be, fructifies to its owner. Nevertheless, if positive law decree otherwise, it can more probably be stood upon; for it must reasonably be presumed that such is the force of the law, that it transfers the dominion of the fruits to the possessor, on account of the public good, that it may remove from the midst the inextricable difficulties and complaints which would very frequently be raised concerning the nature and quantity of the fruits which the owner would claim³⁶² . Furthermore Gallican law decrees that the fruits pertain indiscriminately to the possessor in good faith³⁶³ . So likewise Austrian, Italian and Prussian law³⁶⁴ . Therefore. ³⁶² Carrière, n. 1054 ; Gousset, n. 931 ; Gury, n. 636, 4°, et ali non pauci. ³⁶³ Cod. civ., art. 549. ³⁶⁴ Cod. Austriac., art. 330 ; Ital., art. 703 ; Boruss., I, 7, § 189.

Except the case where, by some legal disposition, the ceasing profit would have to be compensated to the owner. Thus by Austrian law

the finder of a lost thing not yet prescribed owes the owner appearing, besides the thing or its price, also to pay back the profit received thence³⁶⁵ . ³⁶⁵ Cod. Austriac., art. 392.

But if the fruits no longer exist, consumed in any way whatever, he is held only to that by which he was made richer, as is plain from the first conclusion and is found in law, L. Item veniunt, § Propter haec, ff de petitione haereditatis, lib. V, tit. 3.

I said : « With the necessary and useful expenses deducted, and the estimation of labor and industry, » namely necessary and useful. Otherwise the owner would have more than he ought to have, and would grow rich from another's. And it is found in law, L. Fructus, ff Soluto matrimonio, where it is said : « Fruits are not understood, unless the outlays have been deducted. »

Moreover it is to be noted concerning useful expenses, which plainly make the thing better and more useful, that the owner of the thing is not held to pay back to the possessor in good faith the value of the improvement itself, but only of the expenses, provided however they do not exceed the value of the improvement. So L. In fundo, ff de rei vindic. lib. III, tit. 1.

As to voluptuary expenses or improvements, authors agree that they can be removed by the possessor in good faith, if they can be separated from the thing without its destruction or deterioration, such as clocks, pictures, doors, windows, etc.; or if they have not come onto the ground by implantation, as trees (and this is also true of the possessor in bad faith). But if they cannot be removed without deterioration of the thing, or have accrued to the ground by implantation, it seems more probable that the owner of the thing is not held to those expenses, at least in the forum of conscience; for it does not seem equitable that he pay expenses which he would not have wished to make and which bring him no utility. And L. Ex duobus 27, ff de negotiis gestis, lib. III, tit. 5 favors this.

I say 4° : As to merely industrial fruits, the possessor in good faith is held to restore nothing whatever of them (which is also true of the possessor in bad faith), even if he was made richer thereby. This is common opinion. The reason is that the fruits belong to him to whom belongs the fruitful cause. Yet the thing of another, being sterile, as is supposed, is not the cause of these fruits, but the industry of the possessor alone. Therefore. — So all say.

[You will ask 1° to what the possessor in good faith is bound, if he has given away the thing of another to someone.

I answer. He is bound to nothing, if he was in no way made richer from the thing; otherwise he ought to restore to the owner that by which he was enriched. This twofold solution is drawn from the principles enunciated above. But once the error is detected, the donor of the thing of another is bound, if he can easily do so, either to admonish the donee, that he render the thing to its owner, or the owner, that he may be able to reclaim his thing. This obligation arises from the general precept of charity, and moreover, as it seems, from the law of commutative justice, since the author of an injustice, even merely material, is held to repair it if he can do so without his own notable inconvenience.

You will ask 2° to what the possessor in good faith is bound, if he has sold gratuitously accepted property belonging to another.

I answer 1° In case of eviction, he is bound to pay back the price to the buyer; otherwise he would grow rich from the thing of another.

2° Outside the case of eviction, namely when the thing cannot be recovered by the owner, whether because the last possessor consumed it, or because he no longer appears, the seller, according to the common opinion, owes the whole price received from the buyer back to the owner. The reason is that from the whole of that price he was truly made richer, and the owner unjustly despoiled of his thing suffered an equivalent damage. Furthermore equity does not tolerate that one man, with the loss of another, be enriched from his goods. Whence the owner must be made whole from the profit which the seller received and to which he had no right.

Certain ones nevertheless entirely free the seller, because against him the owner has no recourse. But this does not seem true; for the seller would grow rich from the thing of another. it would not be safe, in this case, to depart from the common opinion ³⁶⁶. ³⁶⁶ Ita Gousset, n. 930. Gury, n. 639.

You will ask 3° to what the possessor in good faith is bound who sold the thing of another, which afterward perished in the hands of the buyer.

I answer 1° If he had the thing under an onerous title, v. g., because he bought it, it is more probable he is bound to nothing. For indeed : 1° he is not bound by reason of the thing, since he no longer has it; 2° nor by reason of the damage, since he is not the cause why the thing perished.

2° If he had the thing under a gratuitous title, he is held to restore the price by which he was made richer through the sale. This is the common opinion. But, to whom is it to be restored? The theologians disagree. Some probably say it is to be restored to the buyer: both because the thing perishes to its owner; and because the sale, being of the thing of another, was invalid, and therefore the buyer in good faith has a right to recover his money. Others, more probably, because more equitably, as it seems to us, teach that it is to be restored to the owner: both because the thing did not perish absolutely, but exists equivalently in the price received; and because the sale, which was null, the thing perishing, harms the buyer no more than a valid sale. But since the former opinion is not lacking in probability, the seller would not need to be disturbed if he had paid back the price to the buyer. — It is to be noted that, if positive law determines to whom the restoration is to be made, the law is to be stood upon, because it validly determines the dominion, lest difficulties arise thence ³⁶⁷. ³⁶⁷ Cfr. Marc., Instit. mor.; Alphons., n. 939; Gury, n. 641.

You will ask 4° what is to be done if, after it is recognized that the thing belongs to another, the owner cannot be found.

I answer this case is to be solved from the principles enunciated above concerning a thing found. You received, v. g., through blameless error, more than was owed, from one you know not. If you could not find the owner, the money given beyond what is owed must be held as a thing abandoned, and its dominion is acquired by the first occupant.

Note that, if the possessor in good faith be culpably in delay of restoring, he is constituted in bad faith, and therefore is held to compensate the damage ensuing from the delay.]

The question concerns a buyer in good faith, who bought a thing for himself, and which if he render it to its owner he will probably lose the price given to the thief; and concerning the thief, who probably will not give back to the owner the thing returned to himself.

I say : It is more probable that he who buys a stolen thing in good faith, when he knows it is stolen, is held to render it immediately to the true owner, and not to the thief, even though he would not recover his price from the thief.

Proof. 1° No one can lay hold of the thing of another, or dispose of it, against the reasonable wish of its owner; for this is properly theft. Yet the owner is reasonably unwilling while his thing is rendered to the thief, about to perish to himself. Therefore. — Proof of the minor. The owner is not bound to consent to this. Therefore he is reasonably unwilling. — Proof of the antecedent, both because the thing cries out to its owner, and because the owner has the right of claiming it back, and the buyer is held to render it to him who claims it, as I shall say presently. Therefore he is not bound to consent.

Only the owner of a thing has dominion over it, wherever it may be found here and now. All laws establish this and reason confirms it; for to be the owner of some thing essentially involves the idea of disposing of it, and consequently the right of excluding others from possession of it. But it is said wherever, etc., because for retaining dominion the mere intention suffices, without a continuation of real occupation being required.

From this general principle there flow of themselves four very well-known axioms which will recur very often in the course of this treatment, namely: 1st. The thing cries out to its owner; 2nd. The thing bears fruit for its owner; 3rd. The thing naturally perishes for its owner; 4th. No one ought unjustly to be enriched from another's thing.

But these principles, besides the fact that sometimes according to different laws of places they receive different application, are further modified according to the different condition of the possessor. For someone can possess another's thing either in good faith, or in bad faith, or in doubtful faith. Therefore it must be said: 1st, concerning the possessor of good faith; 2nd, concerning the possessor of bad faith; 3rd, concerning the possessor of doubtful faith.

A possessor of good faith is he who is invincibly ignorant that the thing possessed by him is another's and prudently judges it to be his own, for example, because he acquired it by a title of dominion translative of itself, say, of inheritance, legacy, donation, or purchase. But it is supposed that he has not yet acquired by prescription the thing possessed; otherwise he would no longer be the holder of another's thing, but of his own.

I say. A possessor of good faith, although as soon as he knows the thing possessed by him to be another's, he is certainly held to restore it to the owner, while it still exists in whole or in part; nevertheless he is held to nothing, if, while good faith lasted, he lost it, consumed it, or in whatever way destroyed it, provided that without any title, or unjustly, he did not thereby become richer. The reason for the first is that the thing cries out to its owner, and the reason for the second, that the thing naturally perishes for its owner.

I said: provided that without any title, or unjustly, he did not thereby become richer: because that in which he would have been made richer would succeed to the thing itself. But it is contrary to natural right that someone become rich with the injury of another, according to rule 48 of law in 6: Someone cannot be enriched with the injury or loss of another.

Question 1. Whether a possessor of good faith is held to restore the diverse fruits which, while good faith lasted, he received?

Resp. Negatively, if the discussion is about industrial fruits, namely those which are chiefly attributed to the possessor's industry, or also about mixed fruits, in that part in which they are industrial. But otherwise it must be said concerning natural fruits, namely those which come forth from the very substance of the thing, without any or with only slight work of man; and concerning civil fruits, which are not fruits properly so called, but are held as such in law, as are annual revenues, the price of leasing a house, etc. The reason for both is that, just as the person of the possessor naturally bears fruit for himself by industry and labor, so the thing, say some piece of land, must bear fruit for the owner through the natural production of grasses. - Cf. St. Alphonsus, n. 610. - Kenrick, tract. 10, part. 2, n. 172. - Ballerini, note (b), p. 547.

Question 2. To what is a possessor of good faith held, if he has sold to another a thing bought from a thief?

Resp. 1st. In the case of eviction, that is, if the owner has vindicated his own thing from the buyer, the seller is held to return the price to the buyer. The reason is that the sale of another's thing either is wholly void, as some think, and then the price is not the seller's but the buyer's; or, as they commonly teach and as is established by Roman Law, it at least lacks firmness and is liable to rescission. Therefore, when eviction intervenes, the contract must be dissolved, and the buyer by the fact itself acquires recourse against the seller: since by accepting the price from the buyer, he implicitly obligated himself to repair the damage, if perhaps eviction would occur. The same thing must be said, for the same reason, in the case of spontaneous restitution made by the buyer. This last point, however, Lugo denies with Lessius, when spontaneous restitution made without the seller being warned inflicts unjust damage on him, by preventing him from being able to recover his own price. - Cf. St. Alphonsus, n. 601. - Salmant., tract. 13, cap. 1, nn. 89 and seq. - Lugo, disp. 17, n. 109. - Lessius, lib. 2, cap. 14, n. 28.

Resp. 2nd. Outside the case of eviction or spontaneous restitution on the part of the buyer, the matter is not without difficulty and is keenly controverted. But, natural right alone being considered, the opinion of those seems probable who hold that the possessor of good faith can then retain the price of the thing sold; for the obligation of restoring to the owner does not urge by reason of unjust damaging, because he acted in good faith, nor by reason of a thing accepted, because this is no longer found with the seller but with the buyer. - Nor should you say that the thing is found with the seller in an equivalent, for recourse is had to an equivalent when the thing has perished, and someone has thereby become richer, but not when the whole thing still exists in its natural state. Besides, that contract was probably valid, insofar as the buyer, having dominion over the price and wishing to transfer it, in fact transferred it to the seller, although the seller did not transfer dominion over the thing; and therefore by many it is called a lame contract. - Cf. St. Alphonsus, nn. 601 and 800. - Lugo, disp. 17, nn. 106 and seq. - Lessius, lib. 2, cap. 14, n. 29. - Salmant., tract. 13, cap. 1, n. 88.

The same solution, as to the twofold response and hypothesis, seems to be given if a possessor of good faith has sold to another an alien thing received gratuitously. - Nor should you say that the possessor in this case becomes richer by another's thing; for if the buyer truly transferred dominion over the money, so that a lame contract took place, the possessor did not become richer unjustly. - Cf. Cardinal Gousset, n. 930.

Question 3. To what is a possessor of good faith held, if he has sold an alien thing, and it has perished in the hands of the buyer?

Resp. It is much controverted among theologians, who nevertheless much more easily concede that the seller can retain the price, if he had the alien thing by an onerous title, than if he acquired it by a gratuitous title. For they say that the seller is held neither to giving anything by reason of the thing, because he no longer has it, nor by reason of damage, since he was not the cause of its destruction. But this same reason ought to have force for the case in which the thing was held by gratuitous title; and if the seller then became richer, nevertheless he did not act unjustly.

Question 4. Whether a possessor of good faith can deduct necessary expenses which he incurred in preserving or increasing the thing?

Resp. Affirmatively; indeed he can also deduct useful expenses, for otherwise the owner would receive more than is his own. But he can claim nothing for expenses merely voluptuary; because it is not equitable that the owner pay expenses which bring him no utility, although he can retain them for himself, if they can be separated while the substance of the thing remains intact. Moreover, among expenses there are not to be reckoned fortuitous cases, nor damages caused per accidens. Thus, for example, if in cultivating another's field your horses perished, the value of the horses cannot be deducted, but only the estimation of the labor done by the horses for the cultivation of the field.

Question 5. Whether he who in good faith bought a stolen thing can return it to the thief in order to recover his own price?

Resp. Negatively, if the owner appears demanding his own thing from him; for then he must return it to him, even with the loss of his own price, because by natural right the owner can occupy his own thing wherever he finds it. Nevertheless an action is given to the buyer against the thief. But if the owner is indeed known, but unaware of the thing, more probably the buyer can send the thing back to the thief, in order that he may recover the money; because the buyer is not held to preserve the thing for the owner with his own damage, indeed he can permit the damage of the owner in order to guard against his own. But if the thief or another seller does not appear or does not wish to return the money, the buyer, once the owner is known, cannot sell the thing to others, nor convert it to his own uses in order to preserve himself unharmed, because he is not the owner of the thing; but he must return it to the owner, notwithstanding the loss of the price. But he preserves recourse against the seller; and if he cannot find him, he himself must undergo the damage. - Cf. St. Alphonsus, n. 569. - Carrière, n. 1042.

A possessor of bad faith is he who certainly knows that the thing which he takes or possesses is not his own.

I say. The possessor of bad faith must restore not only the thing itself in individual form or in equivalent, if it no longer exists, and besides all that in which he has been made richer unjustly, but also he is held to compensate every damage inflicted upon the neighbor from the unjust taking. The reason is that the formally unjust damager violates justice no less and is held to restitution no less than the simple holder of another's thing. Nevertheless he can retain all industrial fruits and deduct expenses both necessary and useful; indeed also merely voluptuary expenses, where they can be separated while the substance of the thing remains intact, unless in penalty for the offense he has been condemned to lose the expenses. - Cf. St. Alphonsus, Hom. Ap., nn. 74 and 77.

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.

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.

It is certain, and beyond controversy, that goods of fortune, the same ones, if they exist, even if consumable by use, are to be restored as the same in number, unless perhaps thereby a hidden sin of the sinner would be made manifest, or some great inconvenience would follow, as Valentia quaest. 6. puncto 5. §. 1. Navarre in the Manuali, cap. 17. num. 24. notes; or unless the creditor is content with another thing, as is found in Leg. eum a quo, and Leg. manifesti, Cod. de solut.

But if the thing no longer exists, satisfaction ought to be made in equivalent. And if the thing is consumable by use, it ought to be restored as the same, if it exists; or another of the same species, and equally good; or in money. Nor is the thing only owed, but also the fruits of the thing, as the Sainted Bonaventure 3. dist. 37. dub. 7. says; and I have said enough about these also above.

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.

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.

XX. QUESTION XIII. What fruits is a possessor of good faith bound to restore? ANSWER. He is bound to restore all natural fruits, if they subsist, expenses being deducted; if they have been consumed, that in which he has been made richer. Since a fruit-bearing thing brings forth fruits for its lord. And this holds true even if the lord would have left the thing untilled.

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.

XXXIX. If a possessor of good faith send a thing found by an honest man to its lord, and it perish, he is not liable to a new restitution. Since he is held neither from unjust acceptance nor from the thing received. But if the thing be owed from a contract of loan, of deposit, of pledge, and the like, authors distinguish. If the thing to be restored be the same in kind — as this garment, this horse, which you received on loan for use — and it be sent by an honest man, the thing perishes to the creditor, because it was his, and therefore it perishes to the lord. On the contrary, if the thing be not the same in kind, but in genus — as moneys, wheat, wine, which you received on loan — they perish to you, not to the creditor, because those things were yours. These things are common ground.

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.

A father wished to have his son who was not in very good physical condition, insured in his labor union, and fearing he would not be passed by the examining physician, sent another son to undergo the physician's examination, and a policy of several thousands of dollars was taken out. After paying premiums on this policy for several years, the father became worried about the honesty of his method of procuring the policy. He says that in his anxiety he went to a priest and told him the whole story of the policy and the priest told him it was all right. Recently the son died and the father applied for the money, but has received none as yet, and it is rumored that on account of the great number of recent labor troubles, the union in question will, in all likelihood, be unable to satisfy the claim. In case the union does settle the claim, either in whole or in part, will the father not have to forfeit all that he paid in for premiums, as he paid the premiums to perpetuate an evident fraud? And what responsibility rests on the priest, to whom the father says that he went for advice, and who told him that it was all right to continue the payments of the premiums?

ANSWER. When the father wished to have his son insured in his labor union, he wished to enter into a true and burdensome contract with the labor union. This contract is known in moral theology as an aleatory contract, in which what is given or promised by one or the other contracting party depends upon an uncertain event. The contract depends on an uncertain contingency, like the throw of the dice. Now one of the conditions of an aleatory contract is that the risk to be taken be made known honestly and without equivocation.

If the person assuming the risk is knowingly deceived by the other party to the contract, regarding the substance of the risk, then the contract is void by the law of natural justice, since the person assuming the risk was deceived as to the substance of the contract. In a contract for life insurance, the party seeking insurance must not fraudulently conceal or distort the risk assumed by the company or labor union, but must submit to a physical examination and answer honestly and without equivocation all legitimate questions concerning his physical condition past and present. If while undergoing the examination, the applicant for life insurance conceal some disease or ailment, the presence of which greatly increases the risk assumed by the company, then he wilfully deceives the company regarding something that is substantial to the contract and forfeits all claim to any money paid him, and must repair any damages that the company may have suffered by his action. In the case submitted to us, there has been practised a complete deception on the labor union. One person has been substituted for another. The labor union was made to believe, by fraud, that it was taking a risk on the life of A, while in reality it was taking a risk on the life of B. The union had no knowledge of B, nor of any risk connected with B's life, and, in fact, did not make any contract conditioned by anything connected with B. Therefore, in truth, the labor union had no contract at all with the father of A and B, and is under no obligation whatever to pay him any money, for the death of his son. Therefore the father may not keep the insurance money, if the labor union eventually pays him any.

But now there arises a second question, concerning the premiums paid to the labor union by the father. Must the father forfeit these, because they were paid to perpetrate a fraud?

No, he must not. The labor union has no title or claim to these premiums. The only claim the company could have to them, would be as payment for carrying the risk on the son's life. But, as there was no valid contract from the beginning, and as the labor union was not carrying any risk on the life of the son, it can have no claim to this money. We mean, of course, in foro interno, ante judicis sententiam. We are trying this case in the court of conscience. If, therefore, the father were to receive the insurance on the life of his son, he would be justified in subtracting the amount of the premiums, before making restitution to the labor union. But he would be obliged to reimburse the union for any expenses they incurred on his son's account, as, for example, fees for medical examinations and certificates, etc. This, however, might be considered cancelled by the interest that the paid-in premiums earned for the labor union.

We now come to the third question. The father says that when his conscience began to trouble him about the honesty of his method of having his son's life insured, he went to a priest and laid the whole matter before him, and the priest told him that "it was all right." The father had been paying the premiums on the policy for several years, when he went to consult the priest. And it is now some three years since he sought the priest's advice.

Supposing now that the man really put the case before the priest, as it is stated here, and that the priest understood him rightly and told him that the means he used to procure the policy were honest (suppositions that we find considerable difficulty in making), what would be the priest's liability before God? How much restitution would he be bound to make, if any?

The question is treated in moral theology under the heading "de restitutione ob consilium doctrinale nocivum."

Whoever, by virtue of his office, is authorized to give advice, and through culpable ignorance, or evil intent, gives counsel that proves harmful either to the person seeking the advice or to a third person, he is bound in conscience to repair all the damages that result from his wrong advice. As to this there is no doubt, be the person giving the advice or counsel a physician, or be he a lawyer, or be he a priest, provided only that he give the advice or counsel by virtue of his office, in the things pertaining to his profession, and of which the public has a right to demand of him that he know what is right and wrong, what is lawful and what is forbidden. The people have a strict right to require of a professional man, who by virtue of his profession is authorized by society to give counsel to those seeking it and to protect the interests of all concerned, that he possess the knowledge his office calls for and that he exercise reasonable diligence in the use and application of his knowledge. If at any time he should realize that his professional knowledge is insufficient for the right exercise of his office, and that harm may result to his clients or to other persons, by advice or counsel proceeding largely from unjustifiable ignorance, he is bound in conscience to suspend the exercise of his office or profession, until he acquire the necessary knowledge, and if he fail to do this, he sins against his conscience, and lays himself liable for all the damage that may result from his lack of knowledge of his profession. Now the priest who assumes the care of souls, is bound in conscience to know the ordinary teachings of moral theology on justice and rights, what is honest and dishonest in the ordinary business relations of life, when a man is bound to make restitution, etc. He can scarcely be ignorant of these things and still have the cure of souls, without grievous sin. His ignorance of the common laws of justice, in his actual position, will ordinarily amount to a gravis culpa. And therefore he must repair the damages resulting from it. Now, in the case which occupies us at present, if the labor union should pay the insurance to the father of the dead boy, then when the father, less the amount of the premiums, has returned the money to the labor union the case is settled. But suppose that the labor union is unable to pay any part of the insurance. What is the priest's liability in that event? It is very simple. If, in reality, the father of the dead boy would have ceased paying the premiums, had the priest so advised him, and allowed the policy to lapse, then the priest is bound to pay to the father the amount of the premiums from the time he advised him wrongly up to the time of the son's death. For we consider his advice to have been the efficacious cause of the continuance of these payments, and therefore of that much damage to the father. And as the advice was sought and given by virtue of his office as a priest, the advice was consilium doctrinale nocivum, vi OFFICII datum, ex-ignorantia graviter culpabili, and the giver of it must repair the damages resulting from it.

Marcus, an employee in a bank, is importuned by some dishonest fellow-employees to join them in their defraudations. They urge upon him that some former misconduct of his is known to them, and that it would make him lose his position if these matters were brought to the notice of his superiors. He feels that he must do their bidding or lose his bread and butter, for he has neither knowledge nor ability for another calling. In the subsequent constant state of committing fraud, he omits for several years to go to Confession. But in order to amend for his defraudations in some way, he spends considerable money for alms and Mass stipends. At length he hears a certain sermon which moves him deeply, and induces him to go to Confession.

1. What has Marcus to do on account of his defraudations?

2. What advice should he be given for the future?

Ad 1. Marcus is clearly bound to make restitution. The alms and Mass stipends with which he tried to appease his conscience can in no way be taken in account in this respect. The injured party is known, and restitution must be made to it, otherwise the wrong can not be righted (Lehmkuhl, I. 1019. Delama II. 713). The question with which Lehmkuhl deals in Sec. 1031 has no bearing upon our case, because in his case a former confessor bade the penitent to use the ill-gotten money for pious purposes, while in our case Marcus has done this without having such commutation granted to him.

Ad 2. As Marcus is evidently in an embarrassing position, he may be allowed to pretend assistance in the defraudations of the bank provided he has the intention and means of making restitution for the amount falling to his share. He should keep this money separate from his private possessions, and he must even invest this money in a profitable way, so as to be able to make at some future time as full a restitution as possible to the defrauded bank. The best way for him to pursue would be to open a special bank account for these defrauded sums and leave them in his will, in a legally unassailable form, to the rightful owner. This is advised to provide for the case of a premature or sudden demise. If circumstances alter, however, or if he should be pensioned or freed in some way from the compulsion exercised over him by his fellow-employees, then he must without doubt make restitution as soon as possible, and must not cause it to be delayed until after his death.

Is Marcus obliged to make known the circumstances to his superiors?

Since his fellow-culprits are not subordinate to him, so that he is not responsible for their actions, he is not obliged in justice to take such a step. But when circumstances alter and he leaves his position, then he will be obliged to report the facts to the proper superiors. (Lehmkuhl I. 1013. Del. II. 705.)

Anastasia, saleswoman in her sister Lucia’s store, buys provisions which their vender, a housekeeper, has secretly taken out of her allowance, as she considers herself entitled to them through her economy in the management of the household, and also to improve her wages, which she considers insufficient. Anastasia purchases these things, partly not to expose this person in the presence of others, and partly because her sister has told her she may safely do so, and that the responsibility for the truth of the assertion rested with the housekeeper.

Is this proper, or is there in regard to the injury done to the housekeeper’s employer the obligation of restitution, and in what order?

Answer. 1. The housekeeper can not be considered justified in appropriating anything over the agreed wages, under the pretext of compensation. To make such a thing permissible it would have to be proved that the person had been forced to work for unfairly low wages. This is not to be supposed in our case. The pretext of economical saving may be regarded more leniently, if in reality the articles ordinarily used in the household were supplied at a saving.

2. The purchase, on part of Anastasia and Lucia, is of articles which at least are very doubtful property of the vender; that a great part of these wares are the property of another, therefore stolen, is morally certain. Consequently their purchase is unlawful; nor does it become lawful because Anastasia hesitates to expose the vender; she can and must refuse the deal, and in order to talk this over with the housekeeper alone this person may be asked to wait until all other customers have left.

3. As there is acquisition of very doubtful, even positively unrighteous, property, the obligation of restitution prevails. As concerns the order, the housekeeper is liable in the first place; she must refund to her employer the value received, or, in case the articles were sold below their value, the actual value of all things to which she had no certain claim; in regard to the balance between the real value and the price received, she is entitled to reimbursement from Lucia’s cash drawer, which profited by this difference in price. In the second place, if, namely, the housekeeper can not, or will not, make restitution, Anastasia and Lucia are liable for the loss which the employer has suffered. The entire loss must be refunded if the injustice of the appropriation is positively ascertained; if the injustice remains in doubt, the restitution may be reduced to a part, say one-half. Finally, it may be asked whether Anastasia is obliged before Lucia, or Lucia before Anastasia. As Lucia approved of Anastasia’s action and Anastasia bought only in Lucia’s name, the obligation of restitution falls first of all upon Lucia. Should Anastasia make restitution she would, in case the housekeeper could not be made to reimburse her, be entitled to recover the money from Lucia; both, however, Anastasia as well as Lucia, are entitled to reimbursement by the housekeeper for the money paid to her.

August Lehmkuhl, S.J.

Flavia, a servant, is in the habit of buying supplies in the store of Emporius. One day she hands to Emporius, who has waited upon her personally, a ten-dollar bill to be changed; he gives her three dollars too much, which fact Flavia only notices on arriving home, when she counts her money. She returns immediately to the store and informs Emporius: “In making change you have made a mistake of three dollars.” The store-keeper, in the belief that Flavia meant that he had not given her enough change, and that she would ask for the difference, replied brusquely: “Such things do not happen here; and, what is more, you cannot prove your assertion.” Flavia tries to explain, but Emporius proceeds with waiting on other customers and pays no further attention to her beyond dismissing her with the words: “It is my rule not to consider such claims unless made during the transaction; if there was anything wrong you should have mentioned it when I gave you the change.” Whereupon he went about his business. Flavia, angered by this treatment, left the store and made up her mind to keep the money for herself. Upon another occasion Flavia bought supplies in another store, where she was not a regular customer. There she was not waited on by the proprietor, but by the clerk. It so happened that he, too, made an error in making change and gave her fifty cents too much. Later on Flavia noticed the error, but she reasoned that she would not be well received if attempting to tell the clerk of his mistake; and she supposed the same principle would hold good here as in Emporius’s store. Thus she soothed her conscience and kept the money for herself without mentioning the matter. The questions are asked: 1. May Flavia, in the first case, keep the money with good conscience? 2, What is to be said about Flavia’s proceeding in the second case?

Answering the first question: Flavia may in this case keep the money for herself, not because Emporius refused to listen, for she would have had occasion to bring the matter up some other time. The actual reason why Flavia is not obliged to take further steps, and why she may retain the money with good conscience, is found in the circumstance that Emporius stated that in his store prevailed the rule not to consider such claims unless made during the transaction. For, if he applies this rule in his own favor, justice requires that he let it prevail also in cases where he might sustain a loss; it would be manifestly an injustice if he demanded restitution in such cases without being willing to make restitution. This applies all the more in our case as Flavia regularly made her purchases at this place and it might easily happen now and again that a mistake happened to her disadvantage. In such cases Flavia would have no hope of indemnification if Emporius’s principle had only a one-sided application; if applied mutually, matters would adjust themselves. It is, of course, understood that a principle of this kind cannot apply if the error is immediately noticed and can easily be proved.

Answer to the second question: This case is, in several respects, different from the preceding one. 1. Flavia does not know at all whether this other store-keeper in such cases acts on the same principle as Emporius. 2. As Flavia does not otherwise trade at this store, there is no opportunity that, by an occasional mistake to her disadvantage, the matter might right itself; there would be no reciprocity. 3. In this case it is a question not of the proprietor, but of a clerk, who may perhaps have to make good the deficit out of his own pocket. Therefore Flavia did wrong by keeping the money for herself, and she is obliged to report the error that took place and return the excess change received. In order not to cause trouble to the clerk, she should, if possible, return it to him privately.

Dr. J. Niglutsch.

From an Italian periodical we quote the following case. Simplicius is an inveterate gambler. One day, finding himself out of funds, he observes that his room-mate, Fulvius, puts away a five-lire piece among his belongings, and Simplicius, thinking that he can replace the money before its owner will discover the peculation, takes this coin and soon invests it in a game of chance. He was favored by luck and won considerable money. His joy and good cheer is noted by Fulvius, who is soon made aware of all the facts, including the one that it was his money which enabled his friend to gamble. Fulvius thereupon claims the entire winnings because it was his money that produced them. Simplicius balked, and finally they agree that Fulvius should have part of the winnings, and, of course, the amount taken from him. After Fulvius had his share safely put away, he made to Simplicius the startling announcement that this coin had been a counterfeit and that he was surprised how Simplicius could pass it without trouble. It is asked, had Fulvius any right at all to the winnings? May he retain share of the winnings with good conscience? Finally, may Simplicius keep the winnings and is he under no obligation to the taker of the spurious coin?

Ad. I. Fulvius had no claim whatever upon the winnings which Simplicius made with this coin. It is true that the possessor malae fidei, which Simplicius is here, must be dealt with far more severely than the possessor bonae fidei, and the principle: res clamat ad dominum, and res fructificat domino, must be more rigorously applied. For instance, the possessor bonae fidei may become the rightful owner of the article and its natural fruits, which is impossible to the possessor malae fidei because the necessary condition, the bona fides, is lacking in him. But in our case there are fructus industriales. The winnings must manifestly be ascribed to the luck and industria of Simplicius. According to law even the possessor malae fidei may retain the fructus industriales.

Ad. II, While Fulvius was privileged to have Simplicius arraigned in court for stealing, he was not obliged to it, neither ex caritate nor ex justitia; he could renounce his right and allow himself to be bought off by Simplicius, who was concerned in preserving his good name, even if, as in our case, there was no intention of dragging the culprit to court.

Ad. III, Simplicius may keep the winnings, but must make restitution for the spurious coin to the man who accepted it as genuine. Gambling presumes an agreement to let chance determine the winner. It is in the nature of a commercial agreement, an emptio certo pretio juris incerti. The gambler buys for a certain sum the right to a gain that depends upon chance, upon the alea. For the nature of an agreement is required the mutuus consensus, in the commercial agreement the mutuus consensus dandi resp. accipiendi certum pretium pro quadam merce. This consensus was certainly present in our case. Simplicius undertakes to put up five lire, and the man who runs the game on his part agrees to pay if Simplicius wins, and his stake is the gain that may fall to Simplicius through the gamble. This agreement was not affected by the circumstance that the buyer of the chance paid with counterfeit money. For this reason, even if Simplicius had not won, he would nevertheless have been obliged to make good those five lire. Since luck favored him, he may take and keep the winnings. He is obliged, however, to restore the five lire, because the man who took the counterfeit coin is injured to that extent by Simplicius, even though the latter was not aware of causing this injury. Prof. Joseph Weiss.

Caius received a watch as a present from Titus, and now discovers with certainty that Titus was not the rightful owner. He asks his confessor for instructions regarding a possible obligation of restitution devolving upon him. Caius is lawful owner of the object, of the watch, if he has had possession of the same bonae fidei for the term provided by law. In many places the law provides a period of six years for this purpose, in the case of movable objects. Apart from such legal title Caius is the owner of the watch, moreover, if he obtained the same at a public auction, or by purchase in any way whatsoever. If Caius has not possessed the watch for the legal term, nor acquired it in any of the lawful ways just mentioned, he is not the lawful owner and must, as honest possessor (possessor bonae fidet), make restitution to the rightful owner. If the owner is known, and as Caius has received the watch as a present, he must immediately restore it to the owner; this is evident. But if he has acquired the watch by purchase he may, if there is no other means of recovering the purchase price, return the watch to the former unrightful possessor, and reclaim the purchase money; in other words, he should rescind the deal. Even though Lacroix (1. m. p. 2, n. 100-103) states the opinion, that the object must be restored to the rightful owner, if known, even if there be danger of not recovering compensation, because it is unjust to make once more doubtful the return to the owner, or because one, in order to save one’s own garment, may not throw that of another into the fire, yet such renowned authorities as St. Alphonsus and Cardinal Lugo support the opinion that the obligation of restoration is not certain, indeed that the permissibility to rescind the deal, by returning the object to the thief against restoration of the purchase price, is more probable. (L. ITI. 569.) In proof thereof St. Alphonsus reasons: I am not per se obliged to maintain the property of another to my own prejudice, and hence I may allow that the thief gets possession of the object in question, so that I may not suffer injury to my property, just as when finding money in the public street, and having picked it up for the owner, I may put it down again (even at the danger that some thief may get it), if I expected injury from taking it in keeping. Furthermore, I have the right to rescind a contract invalid in radice, even though through the rescinding per accidens praeter intentionem a third party should suffer. It is one thing to take away another’s property, another thing not to preserve it. It is one thing to inflict harm upon another, another thing to permit another’s harm.

If the owner cannot be ascertained, then the position of Caius is the same as that of a finder of lost articles. If there is any hope of ascertaining the owner, inquiries for him must be made, the finder in the meantime taking care of the article; but if not, the finder may keep it and do with it as he pleases. E ita fert usus universalis. (Marc I, 999.)

George Freund, C.SS.R.

Case.—Sempronius brings home stolen goods, also money realized from the sale of stolen goods. At first his wife objected strongly to this, but the husband would not desist from stealing, and ordered his wife to use the fruits of his thefts for the support of the family, which she did. Now the man has died, without leaving anything of value.

Questions:

1. May wife and children accept their support from a husband and father who is a thief?

2. Are wife and children obliged to make restitution if later they ‘acquire property?

Solution.—The case before us is one of cooperation in the sin of another, in an injustice, of which he was the perpetrator. Cooperation is either formal or material, according as one shares the sinful intention of the perpetrator and therefore assists in his sin, or does not share the sinful intention, but for some reason participates in the act. Further, we distinguish direct and indirect cooperation; the former exists when one actually shares in the performance of sin, the latter when one only prepares the way or offers the means for the sinful need. The formal cooperation in sin is never allowed, the material cooperation may, for a relatively important reason (causa proportionate gravis), be allowed, and then exonerates from sin as well as from the obligation of restitution. A direct cooperation in sin as a rule cannot be excused; an indirect and remote cooperation may for weighty reasons be excused. The reason for this is that direct participation in the sinful act is generally not possible unless one has agreed to the sin itself; moreover, direct participation, as a rule, is not an indifferent action since one commits the deed with the intention that it be done; for instance, if one helps to kill or maim another then he assists because he has decided to do so for some motive, be it hatred, revenge, or self-preservation, and for his own reasons he intends that the victim be killed or maimed. Hence in regard to direct participation in causing injury, authors distinguish the different kinds of goods and say: 1. quoad damnum vitae, i. e., the unjust killing of a fellow-being; direct cooperation in such an act is never allowed, not even in danger of one’s own life: 2. quoad damnum membrorum, the maiming of important limbs, is likewise not allowed, not even in fear of death, unless cooperation in such mutilation would save the victim’s life; for in this case he would by the lesser evil be spared the greater one; 3. quoad damnum fortunae, an injury to property, may be excused under three conditions where grave fear is present, namely: (a) if the cooperator himself can and will make good the loss; (b) if a serious injury would be done even without the cooperation, and would be accomplished by the chief perpetrator, for then the position of the injured person would be made no worse by the cooperation; (c) when the injury is only trivial, one may cooperate in an injury ex gravissimo metu, in fear of death, even if one neither can nor will make restitution. If, however, one’s cooperation is an active cause of the injury, and one cooperates only in order to protect oneself from loss of property, then one is not allowed to cooperate without assuming the duty of restitution (S. Alph. L. IV. 571.) or, as St. Alphonsus formulates the principle: it is not permitted to cooperate directly in injuring our neighbor in order to avert our own loss of property of the same order if we have not the intention of making restitution; but it is allowable in order to avert an injury of a higher order, for instance death, mutilation, grave dishonor. A more remote cooperation may be permitted, for weighty reasons, in order to avert an equally grievous injury to oneself (Konings; Theol. Mor. n. 772; Aertnys, Theol. M. n. 330).

St. Alphonsus states (l. c.) the reason why even a direct cooperation in injury to property may be allowed in the stated cases: To appropriate or damage property of others is a sin of injustice invito domino; here however the dominus is not rationabiliter invitus.

Now to consider our case, we have to distinguish (1) The stolen articles and the money they brought; (2) the mother and the children; (3) participation in the theft (participatio in actione injusta) and participation in the stolen goods (participatio in praeda) and there will follow these answers to our questions:

A thief who has stolen what belongs to another must, of course, restore the stolen property to its owner. But suppose that he does not do this, and the stolen property finds its way into the hands of others, who, perhaps, know nothing of the theft, what will be the duty of such possessors of another’s property when they come to know the facts of the case? The older theologians discussed this question from the point of view of natural and Roman civil law. Their solutions of the various difficulties to which the question gives rise according to the variety of circumstances were not uniform, and so we may conclude that the dictates of the natural law on the point are not self-evident or clear. Nowadays the question is complicated by the differences in the civil laws of different states and nations. The editors of the new edition of the Moral Theology of St. Alphonsus, recognized this. St. Alphonsus, following Busembaum, says:

“If you yourself bought the [stolen] thing in good faith and sold it without profit, you are bound to restore nothing; only the person with whom the thing is, is bound.”¹ To this the editors append the following note: — Under French, Italian, Austrian, and Spanish law, one who has bought a thing in a public market, or from a merchant selling such things, is not bound to return it to the owner unless the price is refunded to him, which the owner of the thing can then in turn recover from the seller. Under English law, if the thing was bought at fairs (market overt), except in the case of dispossession by a judge’s sentence, ownership is likewise transferred to a buyer in good faith. And since this has been established for the security of commerce, the thing can be retained with a safe conscience. Under German law, one who acquired another’s thing from a person not under suspicion can retain it until it is established that it was stolen or lost.

¹ III., n. 609.

The learned editors recognize, then, that the positive law of the country in such matters is also the rule to be followed in conscience. In his discussion of these questions, Father Lehmkuhl keeps in view the prescriptions of natural law for the most part, which he says,

“They are to be observed there where positive laws have not established otherwise.”

Unless it is evident that the positive civil law on such matters is unjust it is certainly a duty in conscience to observe it. It determines rights of property in doubtful cases which is certainly within its competence, and as it is practically the only rule available, it must be followed if contention, strife, and disturbance of the peace are to be avoided. It is, then, a matter of importance for the student of moral theology to know the rules laid down by English law concerning the ownership of stolen goods when they have passed out of the hands of the thief. I propose in this paper to indicate its chief provisions, and to point out any peculiarities in which it differs from other systems of law which writers on moral theology have had in mind when they composed their treatises on justice. In my treatment of the question I shall principally follow the guidance of Mr. C. L. Attenborough who, in 1906, published a little volume on the Recovery of Stolen Goods.

The thief has no title to the property stolen by him, and he cannot acquire one by lapse of time. The longer he keeps what does not belong to him the greater injury he does the true owner. Moreover, the general rule is that the thief cannot give a valid title to property which he has stolen to anybody else. Nemo dat quod non habet — nobody can give to another what he does not himself own. This rule of common sense and natural justice is confirmed by English law. The Sale of Goods Act, 1893, sec. 21 (1), enacts that: —

Subject to the provisions of this Act, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.

The owner will be precluded from denying the seller’s authority to sell by his conduct when he has held out the seller as the owner of the property, or has consented to his holding himself out as the owner, or as having the right to dispose of the property. In these cases, whether the seller act dishonestly or not, a buyer ignorant of the true facts who relies on the representation made will acquire a valid title to the goods by English law. Besides the foregoing there are certain other exceptions to the rule that the buyer acquires no better title to the goods than the seller had.

And first with regard to money that has been stolen, and which, for the purposes of moral theology, we may treat as goods. When stolen money has been paid away fairly and honestly as currency for a bona fide and valuable consideration the dominion of it passes to the payee, and the former owner cannot recover it. This is due partly to the nature of money as a medium of exchange and partly to the effect of positive law. It is to be noted that the privilege does not attach to coin not used as currency. Thus in a recent case where a thief had stolen a £5 piece, and afterwards exchanged it for five sovereigns, it was held that the person from whom the thief had stolen the £5 piece could recover it, as it had not been paid away in currency. As long as the money remains with the thief or his agent it may be recovered by its owner, and the same is true of stolen money given to another gratuitously by the thief.

What has just been said of money applies also to negotiable instruments which pass by mere delivery. Under the term “ negotiable instruments ” in this connection are comprised bills of exchange, promissory notes, bank notes, cheques to bearer, exchequer bills in blank, foreign bonds with coupons payable to bearer, scrip of foreign loan, Egyptian bonds, debentures of an English company, foreign railway bonds or debentures payable to bearer, and in general any instrument which by the custom of trade is transferable in this country like cash by delivery, and is also capable of being sued upon by the person holding it for the time being.

Another exception to the general rule that the buyer acquires no better title than the seller had is furnished by sale in market overt. According to the Sale of Goods Act, 1893, sec. 22 (1): “ Where goods are sold in market overt, according to the usage of the market, the buyer acquires a good title to the goods, provided he buys them in good faith and without notice of any defect or want of title on the part of the seller.” Market overt is any open, public, and legally constituted market or fair, and any shop in London is a market overt for the sale of goods in which the shopkeeper deals. The sale must be in good faith as far as the buyer is concerned, for a valuable consideration, and the contract must be made wholly in the market, and not elsewhere. There are special provisions made for the sale of horses to be observed if it is intended that the purchaser should benefit by market overt.

If all the conditions required by law are fulfilled, sale in market overt transfers the property to the buyer even if the seller had stolen the goods. Just as for the common good property passes by prescription according to law, so it passes by sale in market overt according to law.

However, the title of goods bought in market overt is not indefeasible. By sec. 24 (1) of the Sale of Goods Act, 1893: “Where goods have been stolen and the offender is prosecuted to conviction, the property in the goods so stolen revests in the person who was the owner of the goods, or his personal representative, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise.” So that upon conviction of the offender for larceny the owner of the goods may request that an order for restoring them be made out in his favor by the court which sentenced the felon. This is expressly granted by the Larceny Act, sec. 100: —

If any person guilty of any such felony or misdemeanor as is mentioned in this Act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, or valuable security, or other property whatsoever, shall be indicted for such offense, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and in every case in this section aforesaid the Court before whom any person shall be tried for any such felony or misdemeanor shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner: provided that if it shall appear before any award or order made that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or being a negotiable instrument shall have been bona fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such security; provided also that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent entrusted with the possession of goods or documents of title to goods for any misdemeanor against this Act.

It is to be remarked that the Sale of Goods Act does not require the conviction to be obtained through prosecution by the owner of the property in order that this may revest in him, and it has been specially provided that when conviction has been obtained by the public prosecutor, restitution of stolen property shall be made to the owner provided that he has given the Director of Public Prosecutions all reasonable information and assistance.

It will be noticed that by the Larceny Act restitution may be ordered after conviction not only for the felony of larceny, but for the misdemeanor of obtaining property by false pretenses with intent to defraud. The distinction is of importance in English law. Larceny has been defined as the felonious taking the property of another without his consent and against his will, with intent to convert it to the use of the taker. To constitute larceny the taking of another’s property must be invito domino. On the other hand, when the property of another is obtained by false pretenses, the owner consents to part with the ownership, but he is induced thereto by the fraud of the other party. This constitutes the misdemeanor, and in either case after conviction of the offender the owner who had been robbed or cheated could obtain an order for restitution under the Larceny Act. In this respect, however, the Larceny Act was corrected by the Sale of Goods Act, 1893, sec. 24 (2) :— Notwithstanding any enactment to the contrary, where goods have been obtained by fraud or other wrongful means not amounting to larceny, the property in such goods shall not revest in the person who was the owner of the goods, or his personal representative, by reason only of the conviction of the offender.

With reference, then, to the restitution of stolen goods an order for restitution can be made after conviction for larceny, but not after conviction for a misdemeanor not amounting to larceny. Such an order of restitution, however, which the court is empowered under these circumstances to grant after conviction is only one way of recovering one’s property. If the property was obtained by a fraudulent contract the previous owner may by word of mouth or in writing rescind the contract, and then he recovers his title to the goods. The owner may seize his property wherever he finds it, and in case he was unlawfully deprived of it, he may use such force as is necessary for the purpose of recapture, though he may not always enter upon anothér’s premises in order to take what belongs to him.

The owner may also recover his property together with damages for any injury that he has suffered from its loss by bringing a civil action against the fraudulent person who deprived him of it, or against an innocent purchaser, or against a thief who has robbed him after he has performed his public duty of prosecuting the thief. Sale of stolen goods by private contract does not pass the property in them, and much less does gift, so that through how many hands soever they may have passed in either of these ways they always remain the property of the owner from whom they were stolen, and they must be restored to him when the facts become known. Innocent purchasers of stolen goods who have surrendered them to their true owner may recover damages from those who sold to them whether the sellers knew of the defect in their title to sell or not. This is expressly provided for by the Sale of Goods Act, sec. 12: —

In a contract of sale, unless the circumstances of the contract are such as to show a different intention, there is—

(1) An implied condition on the part of the seller that in the case of a sale he has a right to sell the goods, and that in the case of an agreement to sell he will have a right to sell the goods at the time when the property is to pass:

(2) An implied warranty that the buyer shall have and enjoy quiet possession of the goods.

The breach of a warranty gives a right to an action for damages, while failure in a condition vitiates the contract. Theologians discuss the question whether an innocent purchaser of stolen property, who afterwards becomes aware of the fact that the goods were stolen, may restore them to the thief in order to recover his purchase money. Whatever some theologians may say in defense of such a proceeding, it could not be adopted among us without exposing the purchaser who had recourse to it to the danger of a criminal prosecution for misprision of felony or compounding a felony. An innocent purchaser who has suffered loss by having to restore stolen goods to their rightful owner may obtain compensation from the Court. By 30 and 31 Vict., c. 35, s. 9, it is provided that:—

Where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offense, which includes the stealing of any property, and it shall appear to the Court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any moneys have been taken from the prisoner on his apprehension, it shall be lawful for the Court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such moneys a sum not exceeding the amount of the proceeds of the said sale be delivered to the said purchaser.

Moreover, by 33 and 34 Vict., c. 23, s. 4, it is lawful for any court by which judgment shall be pronounced or recorded, if it shall think fit, upon the application of any person aggrieved, and immediately after the conviction of any person for felony, to award any sum of money, not exceeding £100, by way of satisfaction or compensation for any loss of property suffered by the applicant through or by means of the said felony, and the amount awarded for such satisfaction or compensation shall be deemed a judgment debt due to the person entitled to receive the same from the person so convicted, and the amount may be ordered by the Court to be paid out of any moneys taken from the prisoner on his apprehension, or payment may be enforced in the same manner as payment of any costs ordered to be paid in any civil action.”²

² Attenborough, p. 184.

The Roman law, like most modern systems, granted a title by prescription for movables as well as immovables. Accordingly, theologians teach that one who has possessed another’s property in good faith for the time required to gain a title of prescription, thereupon becomes its owner, and is no longer bound to restore it to the original owner. In English law movables cannot be claimed by prescription, and so ownership in another’s goods that have been stolen cannot be acquired by prescription among us, unless the goods belong to the Church, and are thus subject to ecclesiastical law. By ecclesiastical law uninterrupted possession in good faith for thirty years gives a title to movables that have been stolen, and so one who in good faith bought a stolen chalice and kept it for thirty years would become its owner by prescription after that length of time.

Greater difficulties than the foregoing arise when we consider the obligations of one who was in possession of another’s property in good faith, but who has parted with it to some third person. For the solution of this question various hypotheses may be made.

One who formerly was in possession of another’s property may have given it to a third person. In that case he must warn the donee that he has discovered that the gift belonged to some one else, and that he had no right to make it over to him; if he does not do this he will sin against justice, inasmuch as he is bound in justice, as far as possible, to prevent loss accruing to his neighbor through any action of his. Moreover, if he obtained any natural fruits from the property while it was in his possession, he must account for them to the owner, for Res fructificat domino. Any fruits obtained by his own industry on occasion of being in possession of another’s property he may keep, they are the fructus industriae. If there are no actual fruits of the property in his hands, or if the property no longer exists, or the possessor cannot be found, the former possessor in good faith will be under no obligations with respect to it or its owner.

A purchaser in good faith and in market overt of another’s property who has sold it again in market overt will have no further obligations towards the original owner or towards the buyer. He had made the property his own, and he sold it as his own. We have seen that if the sale was not in market overt, the sale does not pass the property in the goods, and that the seller is liable to be compelled to refund the purchase money to the buyer who has restored the goods to their owner. Is such a seller also liable to the owner of the property?

We have seen that by the Larceny Act, the Court may, after conviction of the offender, order the restitution of any property that has been stolen or fraudulently acquired. In section 1 of the same Act, “property ” is interpreted as including —

Every description of real and personal property, money, debts, and legacies, and all deeds and instruments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and as also including not only such property as shall have been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise.

At first sight it would seem from this that any one who has sold stolen property may be called upon to account for the proceeds to the owner. It has, however, been held that this interpretation does not apply to proceeds of stolen goods in the hands of innocent purchasers or pledgees, who hold such proceeds for themselves and not as agents to the thief, nor has the court power to order the restitution of such proceeds. Such a purchaser, therefore, will only be bound to refund the purchase money to one who bought stolen goods from him when they have been restored to their owner.

A seller, however, who acquired stolen property by gift, will come under the provisions of section 1 of the Larceny Act, and he may be compelled to account for the proceeds of the sale to the owner of the goods. An innocent holder of stolen goods, says Mr. Attenborough, will either hold them as an agent of the thief, or as a donee from him, or as a purchaser, in which expression we include a pledgee. With regard to the thief’s agent or donee it need only be said that he is in no better position than the thief himself, and that the goods can be recovered from him as readily and in the same way as they can be recovered from the person who stole them. 3

And again : —

Where property has been obtained by fraud and still remains in the hands of the fraudulent person or of his agent, it can be recovered from him as readily as if it had been stolen; and the same applies if the property is in the hands of a donee from the fraudulent person, or of one who has given value for the goods but with knowledge or, what is equivalent, an unsatisfied suspicion that some fraud has been committed with regard to them by the person from whom he received them.⁴

⁴ Ibid., p. 47.

8 Attenborough, p. 16.

In this way then it would seem that English law settles in favor of the owner a question which is a matter of considerable controversy among theologians. The common opinion, indeed, of theologians is on the same side as English law, it obliges the donee of stolen goods to restore the proceeds of their sale to the owner when he cannot come at the goods themselves, but some doubt whether this is so certain as to impose a strict obligation in conscience. It is to be noted that the obligation under English law does not arise until the order for restitution has been made out and put in execution. Until this step is taken, it may be said in favor of the more lenient opinion that when goods have been sold for money in good faith, the money as currency becomes the property of the seller, and especially when it is added to and mixed with one’s previous stock. It then becomes the seller’s property by accession, for the product of, or substitute for, the original thing still follows the nature of the thing itself as long as it can be ascertained to be such, and the right only ceases when the means of ascertainment fail, which is the case when the subject is turned into money, and mixed and confounded in a general mass of the same description."

5 Attenborough, p. 89.