Lawful Occupation

Conversion of Others’ Property.—The conversion of property owned by others or held by them may be permitted, or at least tolerated, when the owner or possessor would be unreasonable if he objected as in the following cases:

(a) in extreme necessity, for according to natural law each one has the right to preserve his life by using the temporal things of the earth (see 1571). In danger of death things necessary for escaping the danger become common property, and no injury is done by the person in danger if he uses the goods of another person to save his own life;

(b) in certain cases when occult compensation is the only way in which one can defend or secure one’s right to property, for it is not wrong to take what is one’s due, if this is done without harm to the rights of others.

Conditions for Lawful Occupation of the Goods of Others in Extreme Need.—(a) The occupation must be necessary for securing one’s own or another’s natural right to some supreme good, such as life or what is almost the equivalent of life (e.g., freedom from cruel restraint, escape from fearful disease). A supreme good is at stake, then, when one is in extreme, quasi-extreme, or most grave need (see 1236), that is, exposed to the certain or very probable peril of losing life, limbs, liberty, sight, chastity, etc.; occupation is necessary when there is no other way (e.g., by begging) to avert the danger.

(b) The occupation must be made without detriment to the rights of others. Hence, one may not occupy more than is really necessary to escape the danger; one may not occupy at all if the owner is situated in an equal danger (e.g., one may not take the plank from a man in danger of drowning in order to save oneself); one may not retain the thing taken, if the danger has passed (e.g., one who commandeered his neighbor’s car in order to escape from a thug must return the car). The neglect to ask permission, however, does not exceed a venial sin and does not impose the duty of restitution, if there is a real reason for occupation. One may not take the goods without permission, if this can be obtained without too much difficulty; nor forcibly, if possession can be had peaceably.

Restitution for Occupied Goods.—Is the occupier bound to restitution for occupied goods that were consumed (e.g., food and drink), if he afterwards becomes able to pay for them?

(a) If the occupier had no prospect at the time of ever being able to pay for what he took, he is not bound to restitution—not because of possession, since the thing has perished, nor because of the taking, since there was no onerous contract, nor because of injury, since he acted within his rights. The owner cannot complain at this, since charity obliges him to give of his own free will to one who is in supreme need and not to expect that the alms be paid back, while justice forbids that he impede the appropriation of what is needed by the person in distress. It seems, however, that a case of this character would rarely happen, and, if it did happen, the more decent thing would be to pay for what was used. Some moralists think that more probably there would be an obligation of justice to do this, since occupation is lawful only in so far as it is necessary.

(b) If the occupier had the prospect at the time of being able to pay for what he took, he is bound to restitution; for one should not occupy more than is necessary, and, if a loan suffices to tide one over a difficulty, it is not right to expect a gift. Hence, men who raid bakery shops in times of food shortage, are bound to make restitution to the bakers when able.

Occupation in the Case of Merely Grave Necessity.—Is it lawful to occupy in merely grave or ordinary necessity?

(a) This is not lawful, for otherwise the doors would be opened to thefts without number, and both the security of property and the peace of the public would be at an end. Innocent XI condemned the proposition that it is permissible to steal in great need (Denzinger, n. 1186). (b) Such occupation is less sinful than to occupy without necessity, and indeed the theft may be only venial if one is in grave need and has vainly sought work or charity to relieve the difficulty, as when a poor man who is not able to give his children all the food they need steals provisions now and then.

Occupation of a Large Sum by One in Dire Need.—(a) One opinion holds that even for the sake of avoiding death this is not permissible, for one has no right to extraordinary means for the protection of one’s life.

(b) A second opinion maintains that this occupation is lawful, under the conditions given in 1921; for life is more precious than even a large sum of money, and in such extreme need property right yields to the right to life.

(c) A third opinion distinguishes between the case in which extreme necessity is proximate or urgent (e.g., an unarmed Watchman is threatened with instant death if he does not hand over at once the money he has in charge) and the case in which it is only remote (e.g., the doctor tells a poor man that he will die shortly from tuberculosis unless he goes to a more healthy altitude, but the patient is too poor to follow these instructions). In the former case the person in need may take what is necessary (on account of the reasons for the second opinion and also because the civil laws allow this), but he is not bound to do so (on account of the reasons for the first opinion); in the latter case, more probably he has no right to occupation, for this would be prejudicial to the public welfare and is moreover strictly forbidden by civil laws (see 1571, 1253).

Duty of the Owner towards One in Dire Need.—(a) In charity the owner is bound to come to the aid of the needy person; but, if he neglects this duty, he does not offend justice and is not held to restitution (see 1240, 1753). (b) In justice the owner is bound not to prevent the needy person from taking or using what he is entitled to; but should the owner do this and the necessity cease, there is no duty of restitution, for the right of the needy person ends with the necessity.

Lawfulness of Receiving Support from a Thief.—Is it lawful for the wife and family to receive support from the head of the family, when he is a thief?

(a) It is lawful when the persons stolen from are not thus deprived of their goods or of the prospect of restitution. This happens when the actual support does not come from the stolen property, and the thief is able to make restitution from other property that belongs to him, or the wife and children earn as much for the family by their work as they receive in support. In this case the family may take from the thief even things that are not necessary for their support.

(b) It is lawful when the persons stolen from are deprived of restitution, but the obligation of restitution has ceased on account of grave necessity (see 1797). This happens when the support does not actually come from the stolen property, but the thief is unable to make restitution from his own property without depriving his own family who are in grave need. In this case the family may take from the thief only such things as are necessary for them according to their station in life.

(c) It is lawful when the persons stolen from are deprived of their goods, but the right to occupy these goods has arisen on account of the extreme necessity of the family (see 1920 sqq.). This happens when the support comes from the stolen property itself. But the family may use only what is really necessary for the relief of their dire distress.

231. Notion. Those things are called abandoned which the owner has voluntarily renounced from himself, nor transferred their dominion to others; e.g., fruits which, when the harvest has already been completed, have been left behind; dry wood which lies on the ground; old rags which are thrown away, etc.

Vacant goods are those which, when the owner has died, become no one's, because on the one hand the deceased did not dispose of his goods by testament, and on the other there are no heirs who can or wish to accept the succession.

232. Principle. By natural right, these goods, as belonging to no one, can legitimately be occupied by the first occupier.

But in most regions civil law establishes that abandoned and vacant goods devolve to the State,¹ with the exception however of movable things of little importance. This law is consonant with reason, and is to be observed in conscience, at least after the sentence of a judge, according to all; indeed more probably even before this sentence, because a law of this kind is not penal, but determinative of property.

¹ For France, cf. a. 539 and 713 Civil Code; Planiol, I, n. 1243-1246.

233. But things lost by shipwreck (epaves) or thrown into the sea to save a ship, or carried away by inundation, are by no means to be held as abandoned: for the owners did not freely and spontaneously reject them, but wish to retain dominion over them insofar as they can; concerning these, therefore, the same thing must be said as concerning lost things. Hence civil laws² generally punish with severe penalties those who snatch away these goods; and deservedly, especially when it is known to whom these things belong; for theft in this case assumes a certain species of cruelty.

² For France, Civil Code, art. 717; Planiol, n. 1279.

47. Preliminary Note. Since this booty to be taken pertains to well-known owners, it is acquired by occupation not properly but broadly so called. For occupation properly so called is concerned with things belonging to no one, as was said above. Nevertheless old Roman law considered the goods of enemies as things belonging to no one, which therefore could be acquired by true and properly so-called occupation. Hence it established: "Things captured in war ... become his who first obtained possession of them."²⁷ Canon law indeed adopted this doctrine, but limited it to a just war.²⁸

Just as customs have changed with regard to hunting, so similarly in present times, with regard to booty during war, much milder usages prevail than in ancient times. Hence also on this point the authority of the old doctors is not to be exaggerated. In ancient times the saying was held as an adage: "The right of war is unlimited"; and St. Thomas²⁹ wrote: "Concerning booty one must distinguish; because, if those who despoil enemies have a just war, the things which they acquire by violence in war become theirs; and this does not have the character of robbery, whence they are not held to restitution." But now, through international agreements, the right of plundering in time of war has been determined in many things (although not in all).³⁰

General Principles Of Present International Law:

1. All those things can be seized from the goods of the enemy which are necessary for waging a just war, for example weapons, food, clothing. Such exactions today are customarily called "contributions" and "requisitions."

2. Booty taken does not pertain to individual soldiers, but to the belligerent government, according to that saying: "Things acquired in war fall to the republic."

3. Outside the case of true need, individual soldiers cannot licitly take from enemies, by their own authority, either food to eat or clothing to wear.

4. Since war is not waged against individual citizens and private persons, but against the whole kingdom, the goods of private persons are inviolable, unless, however, there is urgent necessity, or those private persons illicitly attack the soldiers. Thus at least in land war; for in naval war international statutes concerning this matter have not yet been accepted by all nations.

Corollaries. 1. Soldiers who, laboring under hunger, seize food from enemies without the authority of a superior officer act illicitly indeed, but they are not obliged to restitution, because the prohibition is made rather for preventing abuses and for preserving military discipline than for establishing an obligation of justice. 2. Soldiers seizing other goods of notable value from enemies without legitimate authority are held under grave obligation to restitution, not indeed from natural law, but from international agreements; and if in some war these are not observed on both sides of the belligerents, they can no longer effect that those soldiers ought under grave obligation to restore.³¹

²⁷ L. 1, D. 41, 2.

²⁸ Cf. Ferraris, Prompta bibliotheca, s. v. bellum, art. 3.

²⁹ S. theol. 2, 2, q. 66, a. 8 ad 1.

³⁰ Among the international agreements made concerning this matter those stand out which were entered at The Hague of the Dutch on 29 July 1899 and 18 Oct. 1907. Other agreements for naval war also were made at London on 26 Feb. 1909.

³¹ We wrote more broadly concerning this matter of great moment in Linzer Theol. Quartalschrift 1918.

211. IV. Concerning occupation of booty made in a just war, it must be said:

1. public goods (for example, arms) left by the enemy or violently taken away can be occupied; but occupation can be made not by private soldiers for their own advantage, but according to the law or command of the leader and for the public good, for booty taken does not belong to individual soldiers but to the government;

2. according to natural law even private things of enemies (not goods of the Church, nor of guests or foreigners) can directly be taken away and occupied; nevertheless, according to the convention of positive law, today in land war this is not licit, because war is not waged against simple citizens and private persons, but against the whole kingdom, unless by accident, as if some private person or village had exercised hostility;

3. nevertheless, from the authority of leaders, requisitions can be made from the goods of private persons, but according to certain limits, conformably to the Hague Convention, with due payment nevertheless being made to the owners.

Hence a) soldiers cannot retain for themselves except those things which are attributed to them by law or by concession of the leaders, and provided that the injustice of the war or of the concession is not evident;

b) outside the case of necessity, individual soldiers cannot even by their own authority snatch from enemies food to be eaten;

c) those things which by private authority they have usurped or plundered or destroyed, if they are of notable value, they are held under grave obligation to restore to those who have suffered damage, or, if these are unknown, to superiors (bishops, magistrates), who will distribute those goods to the poor of the places; unless nevertheless after the war the rulers have mutually condoned damages unjustly brought.