Possession of Another's Property in Bad Faith

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.

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

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

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

The possessor in bad faith is bound:

I. As regards the thing. If it exists, the thing must be returned as soon as possible. If it does not exist, generally its price or equivalent must be restored. Cf. the questions treated in n. 990.

II. As regards fruits. He is bound to restore the natural, civil, and mixed fruits which he received, even if the owner would not have received them; for a thing fructifies for the owner. Nevertheless, he can retain the price of the labor furnished for obtaining the fruits. For the rest, it does not matter that perhaps the fruits have been consumed, because by the very fact that they existed they were the owner's. Merely industrial fruits do not have to be restored (St. Alphonsus, III, 618).

III. As regards damages to be repaired. He is bound to restore emergent damage and ceasing profit, provided they were foreseen at least confusedly, for example fruits or interest which the owner would have received. But emergent damage and ceasing profit must be restored according to the estimation of the hope of avoiding damage or of acquiring profit (St. Alphonsus, loc. cit.). If emergent damage and ceasing profit doubtfully took place, he is not bound to restore them. Nor is he bound, with attention paid to the law of nature, to restore fruits which neither he himself received nor the owner would have received. But if civil law prescribes their restitution, it can be held as penal, and therefore should not be urged before the sentence of a judge.

IV. As regards expenses made, he can deduct:

1. With attention paid to the law of nature, necessary and useful expenses; voluptuary expenses for the same reason by which this is permitted to the possessor in good faith (n. 985); finally expenses made for producing fruits (St. Alphonsus, Homo Apostolicus, tr. 10, n. 74).

2. As regards civil law, let the Code of the country be consulted. But if the law of the country prohibits one who has occupied another's thing by force from deducting any expenses, these provisions, insofar as they restrict the law of nature, can be held as penal, so that they cannot be urged before the sentence of a judge.

Question 1. Whether the possessor in bad faith must restore the price of the thing or of the fruits which perished while with him, but would also have perished while with the owner.

Response 1. Negatively: 1° if the thing or fruits perished from an intrinsic defect, as a horse from old age; 2° if they perished by the same danger by which they would have perished while with the owner, as if the house of the thief, in which the thing is, and the house of the owner, in which the thing was, are burned by the same common fire. The reason is that the possessor in bad faith did not expose the thing to the danger, and therefore did not influence the destruction of the thing, or the damage that would follow; hence the obligation of repairing the damage is lacking.

Response 2. Affirmatively, if the thing or fruits perished by a different danger, as if the houses of the thief and of the owner are burned by different fires, or one is burned by fire, the other is overthrown by an earthquake. The reason is that the possessor exposed the thing to this danger, and thus influenced its destruction or the damage, as it occurred in the concrete; hence the obligation of repairing the damage is present. Nor does it seem to matter whether the different dangers took place at the same or at a different time, because it suffices that he influenced the destruction or the damage as it occurred in the concrete (St. Alphonsus, III, 620; Homo Apostolicus, tr. 10, n. 79).

Objection. It does not matter to the owner whether the thing perished by this or by that danger.

Response. I concede; but this does not prevent the possessor from having influenced the damage as it took place in the concrete.

As to what civil law establishes, see the Code of the country.

Question 2. To what extent the possessor in bad faith is bound to restore, if the thing possessed had varying intrinsic value or varying price.

Response 1. If the possessor in bad faith still possesses the thing, he is bound to restore it whole, even if it has increased either in intrinsic value, as if a lamb has grown into a sheep, or, the thing not having been changed, in price alone. If the thing has decreased in intrinsic value, as if a horse has become old, both the thing must be returned and compensation must be added, if by the possessor's fault the thing has decreased more in value than it would have decreased while with the owner. If the thing, unchanged in itself, has decreased in price, it suffices to return the thing, unless, had the thing not been taken away or had it been restored at the time of increased price, the greater price would have benefited the owner, for instance because he would have sold it at the time of increased price. According to others, it does not suffice to return the thing, but restitution must be made according to the greater value, because when the price increased for the owner's benefit, and at that time the thief culpably did not restore, from that unjust detention he contracted the obligation of restoring it according to the greater price. But that contracted obligation is diminished by the very fact that the price of the thing is diminished; for the thing decreases in price for the owner.

Response 2. If the possessor in bad faith no longer possesses the thing, he is bound to restore thus:

1. He is bound according to the greater value: 1° if the thing profited the possessor according to the greater value, for instance if he sold it at the time of increased price; 2° if, had the thing not been taken away or had it been restored, the greater value would have benefited the owner, for instance because the owner would have sold the thing at the time of increased price; in doubt whether it would have benefited the owner, as regards the excess let only so much be restored as the probability of the excess that would have come to the owner is worth.

2. If the greater value neither profited the possessor nor would have profited the owner, as if the possessor sold the thing at the time of the price again diminished, and the owner, had the thing not been taken away or had it been restored, would not have sold it at the time of increased price, it suffices to restore according to the lesser value, by granting to the owner either a thing of the same species and value, or its price.

Objection. In the case just posited, the possessor in bad faith is bound to restitution according to the greater price, because by the very fact that he did not restore the thing at the time of increased price, he contracted the obligation of restoring it according to the greater price.

Response. That contracted obligation, as we have already noted, has been diminished by the very fact that the thing began to be worth less; for the thing decreases in price for the owner.

Question 3. To what extent restitution must be made if another's thing has passed through the hands of several possessors in bad faith.

Response 1. As regards the thing, it must be restored by the last possessor in bad faith who holds it in itself or in equivalent, or who unjustly destroyed or consumed it. If the last possessor in bad faith neither holds the thing in itself or in equivalent, nor unjustly destroyed or consumed it, according to some he, according to others the thief, is bound in the first place as regards the value of the thing. But if neither satisfies, the others must pay the price of the thing in equal parts. If all the others are lacking, each is bound for the whole, because he is a cause of the damage.

Response 2. As regards the fruits and damages of the thing, each is bound to compensation for the part of the time during which each detained the thing. If the others do not restore, the reparation of the whole damage falls upon each, in proportion to the time elapsed from the day on which they became unjust possessors.¹

Note. Let the confessor not too anxiously compute with the penitent the sometimes very uncertain price, both of the thing itself and of its fruits, and the expenses to be deducted, either perhaps laid out or perhaps spent for labor and industry; nor let him scrupulously estimate damage of whatever kind perhaps inflicted on the owner. But let him settle the matter... according to what is equitable and good with the unjust possessor or damager.² Prudence requires that the confessor also attend to the good faith and the mind of the penitent, more or less prepared for due restitution. Let him also observe that it can happen that an unjust possessor who was in bad faith by reason of the thing nevertheless received the fruits in good faith, and either consumed or destroyed them.

¹ Cf. Aertnys-Damen, n. 758.

² Cf. Aertnys-Damen, loc. cit.

642. • Q. 8. What must be done if among various possessors of good faith there has been one of bad faith?

Resp. That circumstance changes absolutely nothing in the condition of the other possessors, whatever place at last he occupied in the series of possessors. For the same obligation toward the owner is incumbent upon each one as if that possessor had been of good faith, since his bad faith in no way redounds upon the others. But he will be treated as will soon be said concerning possessors of bad faith.

Q. 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. This must be determined as concerning a thing found. Therefore more probably the possessor can keep that thing for himself. - Recall what was said, n. 578.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

651. Resolutions. - 1. A possessor of bad faith is held not only to compensate the damage arising to the owner from lack of his thing, and at least foreseen in a confused way, but also every ceasing profit; namely, not only that which the owner in fact lost on account of lack of his thing, but also that which he would have received in a licit manner.

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.

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.

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.

Notion. A possessor in bad faith is one who culpably received or retains a thing which he knows to be another's. Therefore he commits formal injustice and consequently must be treated much more gravely than a possessor in good faith. For he is held to restitution not only on account of another's thing received (as is the possessor in good faith), but also on account of the unjust reception.

216. Principle. A possessor in bad faith is held to restore insofar as he has damaged; or in other words: The measure of restitution is the quantity of damage inflicted.

The reason is evident. For restitution ought to repair the strict equality injured. But this equality is not reestablished unless the whole damage unjustly inflicted has been compensated.

217. The obligations of a possessor in bad faith can be considered with respect: a) to the thing itself received; b) to its fruits; c) to cessant gain and emergent damage; d) to expenses.

a) Obligations by reason of the thing received. The possessor in bad faith is held to restore the thing itself if it still exists, or to give an equivalent price if the thing has perished. - The reason is that a possessor in bad faith is equated with a thief, and therefore is held to restore the whole damage caused (and foreseen). But this restitution demands that first of all the thing itself still existing be restored. But if this is now impossible, an equivalent price ought to be handed over to the legitimate owner. If the thing taken away has perished, whether with or without the fault of the unjust possessor, nevertheless he is held to restore an equivalent price, even if he has in no way been made richer from the thing. For he is held to render the injured owner unharmed.

There is probably one exception: if the thing would have perished in the same manner and at the same time with the owner; because then the thief inflicted no real damage upon the legitimate owner. If, however, he received fruits from the thing, he is held to compensate them. E.g., a thief took away a sick ox which died after a month. It would have died in the same manner and at the same time even if it had remained with the owner. The thief indeed is held to restore the fruits perhaps received during the month, but not the price of the ox. Or a thief took away precious garments. On the following night the house of the thief and the house of the proprietor were together totally destroyed by a single fire. According to natural law the thief is held to no restitution, because he caused no real damage to the legitimate owner.⁶¹ But if the thing did not perish at the same time morally, the thief ought to restore it. Several civil laws,⁶² however, establish that a thief is never exempted from restitution, in whatever manner at last the thing perished or was lost. These statutes do not seem to be unjust and therefore are valid in conscience at least after the sentence of a judge; but they do not seem to bind the heirs of the thief, because they were enacted rather as a personal punishment than for the reparation of damage caused.

He who saved another's thing from most certain and most evident destruction and consumed it in the very place of danger is held to nothing; for a thing not freed from danger and certain to perish in that very place is of no value to the owner. But if he consumed the thing after transferring it from that destruction to a safe place, then he ought to restore the price of the thing, compensation for the labor necessary to save the thing nevertheless being deducted.

Wherefore, e.g., he who in a burning house drinks a bottle of wine which otherwise would perish is held to nothing; but if he first carried that bottle to a safe place, he can indeed demand compensation for the labor undertaken, but he now has no right in the wine, because he saved the thing not for himself but for the legitimate owner. - There are, however, authors who exempt from restitution in this case.⁶³

If during the time in which restitution obliges the value of the thing varies, generally the highest value must be restored, because the thing fructifies for the legitimate owner.⁶⁴ Hence if the thing has been made better with the possessor in bad faith, it must be restored to the owner with the increase, the price of labor and industry nevertheless being deducted; e.g., he who took away a calf by theft, which afterward became a cow, ought to restore the cow or its price, the emoluments received being computed, but the expenses made being deducted. But if the price of the thing first increased and afterward decreased, nevertheless the thief is held (at least theoretically speaking) to restore the greater price, because the thief ought to have restored at any moment. - In practice, however, ordinarily nothing is to be urged except the restitution of the thing or of its price according to the value which it had at the time of the theft, because those changes of price are often very uncertain, unless nevertheless there is question of natural increase, as in the example of the calf just adduced.⁶⁵

⁶¹ Cf. S. Alph., Theol. mor. l. 3, n. 620; Homo apost. 10, 79; Billuart, De iure et iust. diss. 8, a. 11, § 2.

⁶² French law a. 1302; Italian law a. 1298; Spanish law a. 457; cf., however, a. 1896.

⁶³ Cf. Tanquerey, Synopsis theol. mor. de iust. n. 507.

⁶⁴ Thus also Billuart, l.c. § 3. St. Raymond (Summa l. 2, tit. 6, De furtis, § 3) says: "When the valuation of a thing is returned, not only must the time in which the thing was taken by stealth and the time in which it perished be considered, but also the whole intermediate time, and the valuation is made according to that time in which the thing was of the greatest value."

⁶⁵ Cf. Göpfert, Moraltheol. II, 155.

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

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

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

219. c) Obligations by reason of emergent damage and cessant gain. "As often as there is question of restitution of cessant gain or emergent damage, the general rule handed down by all is that restitution ought to be made not integrally, but according to the greater or lesser certainty of such gain or of avoiding such damage, namely, according to how much that uncertain hope could be worth, all those things by which the effect could be impeded being considered." Thus Lugo deservedly.⁶⁷ But the possessor in bad faith ought to repair only that cessant gain and emergent damage which he foresaw at least confusedly. In this case those things which were said above in n. 93 concerning the unjust damager must be applied.

⁶⁷ De iust. disp. 18, n. 133.

220. d) Obligation with respect to expenses. The possessor in bad faith can deduct necessary and sometimes also useful expenses which the owner himself would have made to preserve and increase the thing if the thing had not been taken away. Thus the truer and more common opinion, which St. Thomas⁶⁸ favors when speaking of fruits unjustly received simoniacally. The reason is that then not only is no injury done to the legitimate owner, but his utility is provided for. But it would be too harsh if the possessor in bad faith were held not only to keep the legitimate owner unharmed, but also to bear the necessary and useful expenses. He cannot, however, deduct merely voluptuary expenses perhaps made, unless nevertheless they are separable from the thing without the thing itself being made worse.

⁶⁸ S. theol. 2, 2, q. 100, a. 6 ad 3.

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).

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A. If this happens by an onerous title and:

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

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

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

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

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

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

This can also be proposed in this way:

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

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

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

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

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

In both cases the first seller is bound to restore.

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

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

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

A possessor of 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.