What the good-faith possessor must restore

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.

636. • Questions. Q. 1. Whether a possessor of good faith is held to restore the fruits which he received during good faith?

Resp. The fruits must be distinguished. For 1. some are natural, which come forth from the very substance of the thing, without any or with moderate work of man, such as grasses, etc. 2. Others are industrial, which are attributed chiefly to the industry of the possessor. 3. Others are mixed, which are partly natural and partly industrial, such as crops, etc. 4. Others finally are civil, which are not fruits properly so called, but are held as such by Law, such as annual revenues, the price of the leasing of a house, etc. ¹.

¹ Civil fruits can also be called either natural, or industrial, or mixed, according as they are judged to come from the thing rather, or rather from labor and industry, or from both.

I say 1. A possessor of good faith is held by no reason to restore merely industrial fruits, because these by reason of industry pertain wholly to the possessor ². - Thus all.

² To this are also recalled mixed fruits in that part in which they are owed to industry. On this matter St. Alphonsus says (lib. 3, n. 825): Mixed fruits, namely those coming as much from the nature of the thing as from industry, must not be restored to the owner by a possessor of either good or bad faith except insofar as they correspond to nature, but not insofar as they correspond to industry: for those fruits are not of the thing, but of the man gaining for himself on occasion of the thing or through the thing as through an instrument. This doctrine both in this place and in n. 610 he calls common. Croix (lib. 3, p. 2, n. 213) skillfully warns that the Authors commonly mean this for themselves when they say that mixed fruits are to be restored, the value of industry having been deducted.

I say 2. From natural right a possessor of good faith must restore all other fruits, whether natural or civil, expenses and labors nevertheless having been deducted ³. The reason is that by natural right fruits pertain to him to whom the fructifying cause itself pertains, since they come forth from the thing itself, according to the axiom: The thing fructifies for the owner. - St. Lig., n. 610.

³ Add, as regards civil fruits: and with the valuation of industry deducted, as is plain from what has been said.

I say 3. From Roman Law, according to the common interpretation, natural fruits perceived and still existing must be restored, although the law is not always so clear. But it is disputed as regards fruits no longer extant or consumed. Some judge that nothing is to be restored, although the possessor became richer from them, because the obligation of restitution cannot be proved either from law, which is silent or is not sufficiently clear ⁴, or from the practice of tribunals, which favors the possessor. - Yet they except if someone possessed another's inheritance which has been evicted; for then by law he is evidently held to give back everything from which he has been made richer. - See Carrière, n. 1052. - But more commonly the theologians, at least from natural right, oblige him to restore everything from which the possessor has been made richer. - Thus St. Lig., n. 610.

⁴ Therefore Roman law could seem obscure because, as Cardinal De Lugo well observes with others (De Iust., disp. 17, n. 41-47), the decrees of the older jurisconsults which are borne in the Digest disagreed in such a way that the Doctors labored with empty effort to compose them among themselves. Yet that uncertainty seems to vanish when the laws of the Emperors Diocletian and Maximian (L. Certum 22, C. De rei vindic.), and of Justinian (§ Si quis a non domino 33, Inst. De rer. Divis.), have been considered. But whatever may be true about this, since the general rule, as Lugo says (l.c., n. 39), of the Theologians is - and indeed not only from the more common, as the Author hints, but from the very common and unanimous sentence of them all - that extant fruits are to be restored not only in themselves, but also equivalently, namely insofar as the possessor of good faith has been made richer from them; and since, as the Author also indicates, according to the sentence of the same Doctors this obligation flows from the natural law, it can scarcely indeed be understood how Carrière, because Roman law seemed to him either to be silent or to speak obscurely about this matter, could conclude that the obligation of natural law ceases! But what the same Carrière adds concerning the practice of tribunals, which favors the possessor, is nothing. For does the sentence of any judge, spoken according to the laws of his own region, change or destroy the law of nature? Surely this one thing will now remain: that, fearing the practice of the same tribunals or those laws, we should think marriages duly dissolved even as regards the bond when a French judge speaks a sentence for these divorces!

I say 4. From French Law all fruits, whatever they may be, are assigned to the possessor of good faith, provided he possesses the thing itself as proprietor and by a title which of its own nature is able to transfer dominion. Civil Code 549, 550. But can this disposition of French 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 ⁵, since, understood thus, it promotes the public good much more, and removes from the midst inextricable quarrels and difficulties, which would continually be moved concerning the quantity of fruits to be restored, etc. Thus Carrière, n. 1054. - Vernier, n. 564. - Gousset, n. 931, etc., against some.

⁵ Nothing surely compels us to judge that any law, because it is found in the French code, is for that reason just and endowed with some force in the forum of conscience. But the reason which is added, of the public good, namely that thus occasion for quarrels and difficulties in determining the quantity of fruits to be restored is removed, shows itself too weak even at first sight; both because innumerable examples occur in the code itself in which that difficulty of determining the quantity of the thing to be returned or of the money to be paid by no means exempts from the debt to be paid; and because it is in itself most inequitable that a certain right either of reclaiming one's own or of paying another's should cease for this cause alone, that some difficulty occurs in deciding whether perhaps more or less than thirty gold pieces must be paid.

643. • Q. 10. Whether a possessor of good faith can subtract the necessary expenses which he underwent in conserving or increasing the thing?

Resp. He can deduct all necessary expenses, indeed also useful ones, namely those which conserve the thing and make it better; for otherwise the owner would receive more than what is his. But he can demand nothing for merely voluptuary expenses, because it is not equitable that the owner pay expenses which bring him no utility.

But among expenses are not to be counted fortuitous cases, nor damages caused by accident. Thus, for example, if in cultivating another's field your horses perished, the value of the horses cannot be deducted, but only the valuation of the labor done by the horses for the cultivation of the field.

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*.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. If this happens by an onerous title and:

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

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

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

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

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

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

This can also be proposed in this way:

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

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

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

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

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

In both cases the first seller is bound to restore.

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

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

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

Question 1. Whether a 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.

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.

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.