Possession of Another's Property in Good Faith

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² Lugo, disp. 17, n. 1.

³ Cf. St. Alphonsus, n. 569.

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

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

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

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

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

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

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

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

Authors bring forth three different opinions about this matter:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² Sale of Goods Act, 1893, sec. 24.

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

⁴ Stephen, 2, p. 60.

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

⁶ Sale of Goods Act, 1893, sec. 12.

⁷ Bucceroni, 1, n. 1341.

⁸ St Alphonsus, 3, n. 569.

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

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

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

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

The possessor in good faith is bound as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A possessor of good faith is he who invincibly does not know that the thing possessed by him is another's, and prudently judges that it is his own, for example, because he has already acquired it by a title of dominion translative of itself, such as of inheritance, legacy, donation, or purchase. But it is supposed that he has not yet prescribed the possessed thing; for otherwise he would now not be the holder of another's thing, but of his own.

635. • Principles. I. A possessor of good faith, as soon as he knows that the thing possessed by him is another's, is held to restore it, still extant in whole or in part, or in profit, to the owner; for otherwise he retains another's good, with the owner reasonably unwilling, and therefore violates his strict right. - Thus all.

II. A possessor of good faith is held to absolutely nothing if during good faith he consumed, lost, or even destroyed another's thing, provided he did not become richer thereby. For he is not held by reason of the thing accepted, which no longer exists; nor by reason of unjust taking, consumption, or destruction, because he possessed the thing in good faith. This is also valid if he destroyed the thing purposely, or if it perished from his negligence. The reason is that he inflicted injury on no one by destroying or neglecting a thing which he believed to be his own. It is confirmed also by positive right. For thus, l. 31, § 3, ff. de petit. hered.: He who neglected a thing as his own is subject to no complaint.

I said, provided he did not become richer thereby; because that in which he had become richer would succeed in place of the thing. But it is against natural right that someone be enriched with another's injury, according to rule 48 of Law in the Sext: Someone cannot be enriched with another's injury or loss.

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

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

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

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

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

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

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

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

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

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

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

637. • Q. 2. To what is a possessor of good faith held if he has donated another's thing to another?

Resp. He is held to nothing if he has by no means been made richer, as follows from what was said above in principle II. Otherwise he must restore that in which he became richer, as is clear from principle I.

Q. 3. Whether, after the donation has been made and the error detected, he is held to warn the donee that he should give the thing back to the owner, or the owner himself, so that he may be able to recover his thing?

Resp. He is certainly held from the general principle of charity, if he can easily do it. But he seems also to be held by reason of justice, from the general obligation which the author of an injustice, even merely material, incurs.

638. • Q. 4. To what is a possessor of good faith held if he has sold to another a thing bought from a thief?

Resp. 1. In the case of eviction, that is, if the owner vindicates his thing from the buyer, the seller is held to return the price to the buyer. The reason is that the sale is wholly void, both from natural law and from positive law; therefore when eviction intervenes, the contract must be dissolved, and the buyer by the fact itself acquires recourse against the seller, since by handing over the thing to the buyer he implicitly obligated himself to repair the damage if perchance there should be a future eviction. Say the same, for the same reason, in the case of spontaneous restitution made by the buyer. - St. Lig., n. 601. - Salm., n. 89, etc. Lugo, however, denies this, D. 17, n. 109. ⁶ The same must be said if another's thing has passed into the hands of various possessors by onerous title. For if the last possessor is compelled to give the thing back to the owner, both he and each of the buyers have the right of pursuing his seller, so that they may recover the price paid.

⁶ Lugo, however, circumscribes this doctrine thus: If he to whom you in good faith sold another's thing, without warning you, restored it to the owner, and for that reason you cannot afterwards recover the price from him who had sold it to you, you are not held to return the price to him; because the damage which you brought upon him by selling another's thing, he in turn brought upon you by his accelerated restitution, by preventing you from being able to recover your price. Thus Lessius... This, however, must be understood with a twofold condition. The first is that for that reason you do not recover the price; for if you either can still recover it, or certainly, even if the thing had been returned to you by your buyer, you would not have recovered it, then he did not bring upon you a damage which you can compensate by denying him his price. The second condition is that your buyer, compelled by no necessity, restored the thing to the owner; for if he did it under compulsion, he is not judged to be the cause of your damage, and therefore there remains in you the prior obligation of restoring to him and of repairing the whole damage which he suffered from the purchase.

Resp. 2. Outside the case of eviction, or, according to some, even of spontaneous restitution on the part of the buyer, the matter is not without difficulty, and is keenly controverted. Thus it seems to us that it must be resolved.

1. From Roman Law the seller is held to nothing, at least more probably, unless he has been made richer from the sale. The reason is that the sale of another's thing with good faith is not held in law as wholly void. For although through it the dominion of the thing is not transferred to the buyer, nevertheless the dominion of the price is transferred to the seller. And indeed this seller, even if afterwards he detects that the thing sold is another's, is nevertheless not held either to warn the owner so that he may be able to recover his thing, or to disclose to the buyer that the thing is another's. - Thus more commonly. - Lugo, disp. 17, n. 106. - Salm., c. 1, n. 88. - Vogler, etc., against Billuart, a. 10, and others, who oblige the seller to return the price to the owner or to the buyer; because, they say, the sale of another's thing is wholly invalid.

2. From French Law the difficulty increases, because from art. 1599, C. C., the sale of another's thing is declared void. Therefore if, they say, the contract was plainly void, the buyer did not transfer dominion of the price to the seller, and consequently the seller has no right to keep that price. Therefore the price seems to have to be refunded to the owner, if he cannot reclaim his thing from the buyer. - Thus Carrière, n. 1047, with others.

Yet others deservedly contradict, whose sentence ought to seem sufficiently probable. For it is not plainly established that, even from French Law, the sale of another's thing has absolutely no effects. For from the cited article these things merely can be deduced: 1. that the owner of the thing preserves his right in it; 2. that the buyer is subject to eviction; 3. that the seller, in the case of eviction or restitution on the part of the buyer, is obligated to restore the price to the buyer. Nothing else beyond these can be deduced from the practice of tribunals. But what cause is there between the seller and the owner of the thing? What kind of recourse can this latter attribute to himself against the former ⁷? Besides, it would be very hard that he who no longer has another's thing, nor has been made richer from it, should be obligated spontaneously to undergo so great an inconvenience. Therefore there remains for the owner, for pursuing his right or reparation of the right violated, recourse indeed against the actual possessor of the thing, or against the thief, but in no way against the others. - Thus Gousset, n. 929, and others.

⁷ Namely, the owner has against the seller neither a personal action, because no fraud intervened, nor a real action, because the seller does not have the thing.

639. • Q. 5. To what is a possessor of good faith held if he has sold to another another's thing accepted gratuitously?

Resp. 1. In the case of eviction he is held to repay the damage to the buyer, as in the preceding case.

Resp. 2. Outside the case of eviction, namely when the thing cannot be recovered by the owner, either because the last possessor consumed it, or because he no longer appears, the seller according to the common sentence must refund to the owner the whole price received from the buyer. The reason is that from that whole price he has truly been made richer, nor therefore does he suffer any loss on its occasion; while on the contrary the owner, unjustly despoiled of his thing, is compelled to undergo the whole damage of the thing. Hence this latter must be kept unharmed from the profit which the seller received without any title. - Vogler, n. 66, and innumerable others.

Some, however, free the seller from every obligation, because the owner can have no recourse against him, just as in the preceding case. - Thus Gousset, n. 930. - Yet one must not depart from the common sentence.

640. • Q. 6. If someone in good faith has bought another's thing at a moderate price and has sold it at a greater one, whether he is held to return the profit received to the owner?

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

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

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

But others deny, more commonly and more probably, because that whole profit seems to be the fruit of the industry of the possessor. - Thus Lugo, disp. 17, n. 20, and others sufficiently commonly, as Billuart admits.

641. • Q. 7. To what is a possessor of good faith held if he has sold another's thing, and it has perished in the hands of the buyer?

Resp. 1. If he had the thing by onerous title, more probably he is held to nothing, as follows from what was said in the fourth question. For 1. he is not held by reason of the thing, since he no longer has it; 2. nor by reason of damage, since he is not the cause of its destruction, nor otherwise in any way formally cooperated in the removal of the thing.

Resp. 2. If he had the thing by gratuitous title, the solution does not become so easy, because he became richer. The Theologians depart into various opinions concerning this question, and difficulties stand before you on every side. A threefold sentence is chiefly distinguished.

The first sentence, which seems more probable, teaches that the price must be restored to the buyer. For the seller cannot keep it, since he has been made richer from it. On the other hand, he is not held to give that to the owner, because the thing perished for the owner. Besides, if the first possessor was of bad faith, as more often happens, he is held toward the owner for the value of the thing. But on the other hand, since the sale was invalid, the buyer has a right to recover his money. - Bouvier. - Carrière, etc.

The second sentence, sufficiently probable, holds that the price must be restored to the owner. The reason is that, since he has been unjustly despoiled of his thing, he must be made unharmed. But since the thing no longer exists, it is equitable that he receive that by which the thing is represented. But it is represented by the price which the seller has. Therefore... On the other hand, the nullity of the sale in no way harms the buyer; because it harms him no more than if the contract were valid; but if it were valid, he could demand nothing back. Therefore... Several rightly except the case in which the thing would equally have perished with the owner, for example, from intrinsic defect or from age; for then in reality it would have perished for him.

The third sentence says that the seller can retain the price for himself, because he need not restore it either to the owner or to the buyer. And 1. not to the owner, because the thing perished for him in every case; 2. not to the buyer, because the money which the seller accepted does not precisely represent the thing, but rather the obligation which he undertook for keeping the buyer unharmed in the case of eviction. But the buyer was not evicted; therefore the seller can retain the price by reason of the thing abandoned. This sentence counts few patrons, nor does it seem sufficiently probable.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) If the thing bought has not yet been handed over by the thief, the buyer can rescind the contract and leave the thing to the thief.

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

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

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

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

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

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

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

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

209. There are few treatises of moral theology in which there exists so great a diversity and ambiguity of opinions as in this one concerning the rights and obligations of the possessor in good faith. This indeed seems to have arisen from the fact that the statutes of ancient Roman law concerning this matter are not so clear, nor do they agree with modern civil laws. That we may proceed with due clarity in a matter which is of such great importance and occurs so frequently, the following are proposed in order: the notion of a possessor in good faith; principles; rights and obligations; applications of the principles.

Notion. A possessor in good faith is one who invincibly did not know that the thing possessed by him was another's, but now by chance recognizes his error. Therefore, when the possessor in good faith first received the thing, he had a colored title²⁷ of ownership, e.g., purchase, inheritance, etc. But because of a hidden defect, this title was vicious and therefore did not confer true ownership of the thing, and this is now discovered. Therefore in the possessor in good faith there is no formal injustice, but only material injustice.

²⁷ Cf. above, n. 61.

210. Principle 1. A thing cries out to, fructifies for, and perishes for its owner; nor ought anyone to be enriched through another's injury or loss.

All theologians teach this in agreement with ancient Roman law. Modern laws, however, have introduced certain modifications in this matter, which may also be applied in the forum of conscience, as will be said below.

It is explained: a) A thing cries out to its owner (toward its owner). For a thing legitimately belonging to its owner is so connected with him that, if it has been unjustly separated from him, it always strives to return. Therefore the owner can claim his thing wherever at last he finds it, and the possessor is held to return it, unless he proves that he possesses it by a just title, e.g., by prescription, a just sentence of a judge, etc.

b) A thing fructifies for its owner, because a fruit is something accessory to the thing. But the accessory follows the principal. Therefore, if the thing belongs to the owner, the fruits of the thing must also belong to him. They ought, however, truly to be fruits of the thing, or natural fruits (mixed, civil), but not rather fruits of the person possessing, or industrial fruits. For these belong to the possessor and not to the owner. Modern laws are accustomed to grant to the possessor in good faith all fruits received, even natural and civil ones. Cf. below, n. 213.

c) A thing perishes for its owner. This follows from what has been said; for if the thing belongs to the owner, if it fructifies for the owner, it is equitable that it should also perish for the owner, provided that this loss was caused without injustice. But a possessor in good faith cannot commit injustice properly so called concerning a thing possessed which he invincibly thinks has been committed to his free disposal. Therefore, in whatever manner at last the thing perishes, it perishes for the owner, so that the possessor in good faith has no obligation toward the owner.

d) "Someone ought not to be enriched through another's injury or loss,"²⁸ because otherwise the thing would not fructify for the owner, but for the other possessing it.

²⁸ Rule of Law 48 in the Liber Sextus.

211. Principle 2. In doubts concerning the ownership of a thing and its fruits, favor must be shown to the possessor in good faith.

The reason is threefold. a) The maxim is most true (at least in the matter of justice): "The condition of the possessor is better"; this maxim indeed is notably acknowledged in favor of the possessor in good faith by modern civil laws.

b) The good of the commonwealth demands that possessions be stable and not easily exposed to challenge, and that no one be thrust out of his possession except for a certain and just cause. Therefore favor must be shown to the possessor in good faith.

c) The possessor in good faith received another's thing altogether without any fault. Therefore he merits no harshness or punishment. This indeed would occur if favor were not shown to him in doubts.

212. Principle 3. The statutes of modern civil laws concerning the possessor in good faith are to be observed rather than the statutes of ancient Roman law.

The reason is that ancient Roman law indeed merits the greatest veneration, but nevertheless is subject to change and even to abrogation. Modern civil legislators, however, can freely enact statutes concerning the transfer of private ownership, provided that they do not thereby injure natural law itself. But it is not established that the statutes of modern civil laws openly contradict natural law in this matter. Therefore they bind in conscience, and in a case of conflict with Roman law, subjects are held to follow the modern statutes, Roman law being left aside. Wherefore scarcely any theologian - so far as I know - has publicly taught that the statutes of modern laws concerning the possessor in good faith cannot safely be observed in conscience.²⁹ Certainly these statutes must be rightly understood, and therefore it is especially necessary to perceive whether a true right of ownership is established or only eviction is excluded.

²⁹ Cf. Marc, Instit. mor. I, n. 937; Ferreres-Gury, Compend. theol. mor. I, n. 636.

213. Rights and obligations of the possessor in good faith.

a) The possessor in good faith acquires true ownership of another's thing possessed after legitimate prescription.

b) He acquires all the fruits of another's thing received in good faith, at least if he acquired the thing by an onerous title and if positive law so establishes.

c) He is free from every obligation when another's thing possessed by him perishes and he has not been made richer from another's thing.

d) He can demand compensation for all useful and necessary expenses made for the preservation of the thing.

e) As soon as he certainly recognizes the legitimate owner, he is held to return another's thing existing in his possession. If he received the thing by a gratuitous title, he ought to restore it without any compensation; but if he bought the thing, he can sometimes demand from the owner of the thing the price paid before its restoration, according as the civil laws establish.

The individual points are explained. a) The possessor in good faith has all five conditions required for legitimate prescription,³⁰ provided that he has peacefully possessed the thing for the time determined by law. What that time is, see above, n. 63. Hence if the owner of the thing appears after that time has elapsed, the possessor is no longer held in conscience to hand over the thing possessed. But when the possessor in good faith certainly discovers before that time that the thing is another's, but that its owner is unknown, he can nevertheless retain the thing. For if, according to an opinion safe in practice, the finder can retain another's thing when the owner does not appear, a fortiori this is lawful for the possessor in good faith. E.g., Peter bought a thing in good faith; but after two months he discovers that it had been taken away by theft; the owner of the thing, however, is altogether unknown. Although in this case the title of legitimate prescription is not yet present, nevertheless he can retain the thing and use it until the legitimate owner is known.

b) The possessor in good faith can retain not only industrial fruits, as the older theologians taught according to Roman law, but also all other fruits received during peaceful possession. Thus almost all modern laws, e.g., the French,³¹ Italian,³² Spanish,³³ Austrian,³⁴ Dutch,³⁵ and Swiss,³⁶ contrary to Roman law. German law³⁷ makes a limitation: if the possessor in good faith acquired the thing by a gratuitous title, he is held to return the fruits; otherwise not. Modern laws greatly favor the public good, since innumerable difficulties and complaints which can continually be raised concerning fruits to be restored are thus avoided. Hence theologians commonly teach that these statutes of modern laws bind in conscience, as was already said above, n. 212.

c) The possessor in good faith is free from obligation when another's thing perishes and he has not been made richer from it. For "a thing perishes for its owner." The reason, however, is that no one is held to restore unless he either possesses another's thing or has culpably damaged it. But the possessor in good faith, invincibly thinking the thing to be his own, could freely dispose of it and committed no formal injury, even if the thing perished through his fault. - But what must be said if the possessor consumed another's thing in good faith, e.g., wore out another's garment by frequent use? The older authors responded by distinguishing: If by such use the possessor in good faith was made richer, because, namely, he thereby spared his own things, he is held to pay the price of the thing; otherwise he is held to nothing. Thus Sporer,³⁸ Elbel,³⁹ and, among the moderns, Noldin.⁴⁰

Certain modern civil laws, however, even in this case are accustomed to exempt the possessor from any restitution;⁴¹ nevertheless, in certain cases they do not admit good faith and therefore impose restitution, e.g., when a husband in good faith consumes the goods of his wife, or a tutor the goods of his ward. The confessor also in the tribunal of penance can ordinarily judge according to these civil statutes.

d) As a general principle having few exceptions, it is admitted in modern laws: the possessor in good faith ought to suffer no loss, provided that he is judged to have acted in good faith not only in fact but also juridically. Therefore he can demand not only compensation for all necessary and useful expenses for the preservation of the thing, but also full indemnity when he is held to return another's thing. According to French law,⁴² he can demand from the owner the price paid if he bought the thing in a market, at a public sale, or from a merchant selling things of the same species. Similar things are contained in other laws.⁴³

e) The legitimate owner can always vindicate his thing wherever at last it has been found. Thus natural law. Nevertheless, for the common good civil laws have brought certain modifications to this law. For not only after legitimate prescription does the owner no longer have any right in the thing, but also in certain other cases. Thus, e.g., German law establishes that a possessor in good faith acquires true proprietorship even in the following things taken by theft: money, bearer securities (Inhaberpapiere), and all things bought at public auction;⁴⁴ but in other stolen things the possessor does not acquire ownership. Therefore the statutes of the individual civil laws must be examined; these can ordinarily be observed, indeed ought to be observed, also in the forum of conscience, since they are just determinations of natural law made for the good of the commonwealth. But if the possessor in good faith, according to the law of his country, has not acquired legitimate ownership of another's thing possessed, he is held to return it as quickly as possible, or at least to notify the owner, who can reclaim his thing. This is self-evident, because otherwise he ceases to be a possessor in good faith and becomes one in bad faith; and from delayed restitution he is accustomed to cause unjust damage to the legitimate owner.

³⁰ Cf. above, n. 59 sqq.

³¹ Article 549: "The mere possessor makes the fruits his own only in the case in which he possesses in good faith."

³² Article 703: "The possessor in good faith makes the fruits his own, and is not held to restore except those which came to him after the judicial demand."

³³ Article 451: "The possessor in good faith makes his own the fruits received while possession has not been legally interrupted." - Several civil codes of Latin America establish similar things.

³⁴ § 330: "All fruits arising from the thing belong to the honest possessor as soon as they have been separated from the thing."

³⁵ Article 604. In four points Dutch law clearly determines the rights of the possessor in good faith. The third point establishes: "That he (the possessor in good faith) enjoys, until judicial recovery, the fruits which the thing yields."

³⁶ Article 938: "Whoever possesses a thing in good faith does not thereby become liable to compensate the person entitled by using and enjoying it according to his presumed right. What perishes or suffers damage in this connection he need not compensate."

³⁷ § 988; cf. also § 2020.

³⁸ De iust. tr. 4, c. 2, n. 113.

³⁹ De restit. n. 49.

⁴⁰ De praeceptis n. 439.

⁴¹ Cf. Swiss Civil Code a. 938.

⁴² Article 2280.

⁴³ Cf. Austrian Civil Code § 367 sqq.; Commercial Code §§ 306-308; and Swiss Civil Code a. 934.

⁴⁴ Civil Code § 935. The Swiss Civil Code, aa. 934-935, has similar things.

214. You will ask: Can he who bought a stolen thing in good faith return it to the thief in order to recover his price?

I respond: 1. If the owner appears and demands his thing, the possessor in good faith ought to hand over the thing, unless otherwise established by modern laws. 2. If the owner is indeed known, but is unaware of the thing, the possessor in good faith cannot sell the thing to others in order to recover his price, nor consume it by his own use, because then he uses another's thing in an illicit manner. - But can he hand it over to the thief (with the damage of the legitimate owner foreseen) if he cannot otherwise recover his price?

Theologians depart into two opposed opinions. Cajetan,⁴⁵ Concina,⁴⁶ Dominic Soto,⁴⁷ Billuart,⁴⁸ and several others cited by Billuart and by St. Alphonsus,⁴⁹ relying upon the principle, "A thing cries out to its owner," teach that the possessor is held to return the thing to the legitimate owner, even if he must thus lose his price. Other theologians, St. Antoninus,⁵⁰ Báñez,⁵¹ Lugo, Lessius, Holzmann, and many others cited by St. Alphonsus,⁵² assert that the possessor can return the thing to the thief if no other way is available for recovering his price; because this return is nothing other than the rescission of a contract invalid of itself. But this rescission from a reasonable cause is lawful, even if damage to the owner arises therefrom. St. Alphonsus favors this opinion; indeed he teaches that the same is probably lawful even for the possessor in bad faith. Moreover, in practice it rarely occurs that another way of recovering the price is lacking besides returning the thing to the thief.

⁴⁵ Comm. in S. theol. 2, 2, q. 62, a. 6.

⁴⁶ De iure et iust. diss. 2, c. 7, n. 11.

⁴⁷ De iure et iust. l. 4, q. 7, a. 2.

⁴⁸ De iure et iust. diss. 8, a. 10.

⁴⁹ Theol. mor. l. 3, n. 569.

⁵⁰ S. theol. P. 2, tit. 1, c. 12, § 16.

⁵¹ Comm. in S. theol. 2, 2, q. 62, a. 6, dub. 1, concl. 2 and 4.

⁵² L.c.

215. Applications. Almost all occurring cases can be reduced to four classes; namely, the possessor in good faith: 1. both received and handed over another's thing by a gratuitous title; 2. received it by a gratuitous title, but handed it over by an onerous title; 3. both received and handed it over by an onerous title; 4. received it by an onerous title and handed it over by a gratuitous title.

1. He who in good faith received another's thing as a gift or by another gratuitous title and handed it over gratuitously to another is held to nothing. Thus all laws. The reason is that he committed no injury and had no emolument from the substance of the thing. He is also held to nothing on account of fruits of the thing perhaps received, because according to modern laws the possessor in good faith is almost never held to restore fruits received in good faith.⁵³

2. He who in good faith received another's thing as a gift or by another gratuitous title and afterward sold it or handed it over by another onerous title to another possessor is held to return to the buyer the price received, whether the owner has evicted his thing⁵⁴ or the thing has perished with the buyer. The reason is that here there ought to be applied: a) Rule of Law 48 in the Liber Sextus: "Someone ought not to be enriched through another's injury or loss,"⁵⁵ and b) the principle: A thing perishes for its owner. Thus the common opinion teaches if eviction has occurred; but outside the case of eviction certain theologians, such as Aertnys⁵⁶ and Gury,⁵⁷ teach that restitution of the price received must be made to the owner, since he has been unjustly despoiled of his thing. Other theologians, such as Noldin⁵⁸ and Bucceroni,⁵⁹ think that the price can be retained by the possessor in good faith, because neither the owner nor the buyer has the right of demanding it. In practice the civil laws of each region must be observed.

3. He who in good faith bought another's thing or received it by another onerous title and afterward sold it (although a little more dearly) is of himself held to nothing. For he no longer possesses another's thing, nor did he have notable profit from it. The same is valid a fortiori if someone in good faith received another's thing by an onerous title and afterward handed it over by a gratuitous title. - But if the owner has evicted his thing, then sometimes he himself is held to compensate the price paid;⁶⁰ but sometimes the last buyer can reclaim the price paid from the prior seller, and so on.

4. Modern civil and commercial laws in certain cases do not admit good faith, or at least do not concern themselves with good or bad faith, but simply determine the restitution or retention of the thing and its fruits. It cannot be said a priori that these statutes are unjust. Therefore, when the confessor must judge in the tribunal of penance concerning some graver case of a possessor in good faith, let him first consult a jurist, and let him not easily impose upon the possessor in good faith an obligation of restoring, or grant freedom from restitution, contrary to the statutes of the civil law in force.

⁵³ Cf., however, the exception above in German law.

⁵⁴ Eviction = dispossession; vindication = an action for ownership.

⁵⁵ Thus also expressly German law, § 816.

⁵⁶ Theol. mor. l. 3, n. 309.

⁵⁷ Comp. theol. mor. I, n. 639.

⁵⁸ De praeceptis n. 439 sqq.

⁵⁹ Inst. theol. mor. I, n. 1341.

⁶⁰ Cf. French law, a. 2280.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These things noted,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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