Possession of another's property without title

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² Sale of Goods Act, 1893, sec. 24.

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

⁴ Stephen, 2, p. 60.

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

⁶ Sale of Goods Act, 1893, sec. 12.

⁷ Bucceroni, 1, n. 1341.

⁸ St Alphonsus, 3, n. 569.

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

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

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

There is only question here of one who has well-grounded reasons for thinking that something in his possession belongs to another. We do not contemplate the case of one who merely suspects without solid reason that what he has belongs to someone else, much less the case of one who is ignorant of what title he has to his property. The doubtful faith of such a one as we are contemplating may date from a period subsequent to his obtaining possession of the property, or it may date from the time of his gaining possession of it; the possessor’s obligations will be different as one or the other of these suppositions is verified.

When the possessor was at first in good faith but afterwards a doubt arose as to whether the property really belonged to him, inquiry must first of all be made to try and find out the true owner. Unless the possessor in doubtful faith does this, he exposes himself to the danger of keeping what does not belong to him, and thereby sins against justice. If he discovers the rightful owner, the doubt is solved; if after inquiry the question of ownership still remains doubtful, the possessor may keep the property and use it as his own. for in dubio melior est conditio possidentis. * Encyclopedia of Laws of England, s.v. Conversion, Action of.

If the possession began in doubtful faith, and the property was taken from another’s possession, injustice was committed, and the whole must be restored to the original possessor, for possession was in his favour.

If the property came into the hands of the doubtful possessor by sale or gift, or in some other lawful way, presumptions may sometimes be used to solve the doubt. Thus, even though we get a more than usually cheap bargain, we need not conclude that the seller is a thief, for nemo malus praesumitur nisi probetur.

If the doubt cannot thus be settled, nor the question of ownership cleared up by diligent inquiry, theologians commonly teach that the property must be divided according to the probabilities of the case. For one who began to possess in doubtful faith cannot claim the benefits of possession and keep the whole. He may, however, keep a portion corresponding to the degree of probability of his right of ownership. A few recent theologians, however, doubt whether this solution rests on solid grounds, for even the possessor in doubtful faith has at least the fact of possession in his favour, and, ex hypothesi, it is not certain that he is not the rightful owner; in fact, he has some claim to be considered the rightful owner. These theologians, therefore, would permit the possessor in doubtful faith to retain the property, provided that he be ready to surrender it to the rightful owner if and when he should appear.¹

¹ Bucceroni, I, n. 1354.

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

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

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

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

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

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

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

Whether a possessor in good faith must also restore fruits?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whether a thief is bound to restitution if the stolen thing has perished with him? - Resp. Affirmatively, absolutely, if it perished by the fault of the thief or of any other, because the thief was the efficacious cause of the damage, whether he himself or another lost or consumed, gave away, or destroyed the thing from culpable negligence. Resp. Affirmatively generally, if likewise the thing perished with the thief even without any fault of his. The reason is that the thief, by taking away the thing, took upon himself the whole danger of it. Generally: for it would be otherwise if the thing would have perished with the owner at the same time and by the same case, or from its intrinsic defect, because then no damage at all is inflicted on the owner. More probably this holds even if the thing certainly would have perished at the same time and in the same common danger in which it perished with the thief, e.g., in the same fire or in the same public calamity. The reason is that then the theft was not the cause of the damage, but the thing would equally have perished in the same way and time. L. 620; H. A. 79; Lugo d. 18, n. 141; Vogler n. 501; C. A. 338; C. H. 1896; C. I. 1148, 1298; C. G. 1302, 1379; C. B. 989, 990.

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

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

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

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

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

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

This can be confirmed from another resolution which the same Father Gury has, 655. For, according to the praised theologian, a possessor in doubtful faith who began to possess in good faith, if, after inquiry has been made, he finds that the thing is more probably another's, more probably is not bound to restitution, "because from certain possession a morally certain right arises. In addition, until the other has proved his certain right, the axiom holds: The condition of the possessor is better. St. Lig., l. 1, n. 35, and others very commonly according to St. Lig., against some who teach that then restitution must be made proportionally." But 1. each of these reasons does not lose its force even if someone neglected to inquire. 2. As is established from the second reason, in fact someone is not held by a strict obligation of justice to inquire, but can always prudently say: The condition of the possessor is better, until the other proves his certain right. 3. That hope of finding the owner through inquiry, even if the doubt is not merely negative, for then, as imprudent, it can be disregarded, but positive, constituting true probability, can by right be equated with probability or even greater probability in favor of the owner. But even while this greater probability stands in favor of the owner, after inquiry the possessor is not bound to restore. Therefore neither before, until the other has proved his certain right. L. 547, 562, 657, 658, 706; l. 6, n. 906.

Note: The conclusion placed last holds also for a possessor in doubtful faith from the beginning of possession, when he accepted the thing under title of purchase, donation, etc., doubting whether he from whom he accepted it is its owner, and he neglected to inquire, and the owner of the thing can no longer be found. For a nearly similar reasoning can be made here. This again can be confirmed from the doctrine of the same Father Gury; for he openly has these things, 656: 1. "If you doubt whether your predecessor possessed goods by legitimate title, you can, after the matter has been weighed and the doubt persevering, nevertheless accept and retain the inheritance, provided it is established that he possessed in good faith.

For if the axiom, in doubt the condition of the possessor is better, favors your predecessor, it also favors you as successor; for in this case the principle of a possessor in doubtful faith who began possession in good faith must be applied, since predecessor and successor make one moral person by law." 2. "In doubt whether someone began in good or bad faith, presumption must be made in favor of the possessor, because delicts are not presumed but must be proved." - Moreover, if someone has this intention, that, possessing the thing as though meanwhile precariously, he wishes to render it to the owner whenever he appears, he licitly takes and retains possession. - Lugo d. 16, n. 96; D'Annibale, ed. 4, p. 2, n. 121; Gousset 1028.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

941. From these principles flow the following obligations:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

942. Questions. QUAER. 1. What if another's thing has passed through the hands of several possessors of bad faith, by donation or sale?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

732. Principles. - I. A possessor of bad faith must restore the thing itself in individual, if it exists, or in equivalent if it does not exist, and besides, if you except industrial fruits, all that in which he has been made richer, as was said concerning the possessor of good faith.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. If, after diligent inquiry has been made, the doubt perseveres, more probably he can retain the whole thing, if before the doubt arose he possessed in good faith. The reason is that in an equal cause, or doubt, the condition of the possessor is better; and possession begun with good faith creates of itself the greatest presumption concerning the justice of the possession, and gives to the possessor a certain right which, unless it is overcome by other stronger reasons or presumptions, ought to prevail both in the internal and in the external forum. - S. Alph.,² Lugo,³ Lacroix,⁴ Carriere,⁵ and others commonly, against some who say that the thing must be divided according to the proportion of the doubt.

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

But one who received the thing by another title, for example of purchase, and after diligent examination still doubts whether he from whom he received it is its owner, must restore, according to the proportion of the doubt, to the probable owner, or to the poor, if the owner is unknown. The reason is that possession begun with doubtful faith does not favor him, and therefore he cannot retain the whole; nor from elsewhere does it seem equitable that he be bound to restore the whole, since there is doubt whether the thing is another's. - S. Alph.,³ Lugo.⁴

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

Resp. He is to be equated to him who began possession with doubtful faith; for the prior false estimation is found, and therefore is not to be attended to in the solution of the case. Therefore weigh whether by his possession he despoiled another or not, and resolve according to what was said in principle III.

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

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

741. • Query 3° To what is a possessor of doubtful faith bound if he neglected to inquire and the owner appears?

Resp. Generally, after the beginning of the doubt, he must be treated as a possessor of bad faith; therefore he must be bound not only to return the thing to the owner, but also to repair all damages to him. - Carriere.⁷

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

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

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

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

Query 5° Is a possessor of doubtful faith who began to possess in good faith bound to restitution if, after inquiry has been made, he finds that the thing is more probably another's?

Resp. More probably negatively, because from certain possession a morally certain right arises. Moreover, until another proves his certain right, the axiom is valid: The condition of the possessor is better. But the other can prove a certain right, that is, one morally such, only by most probable reasons.²

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

Resp. See n. 803.

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

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

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

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

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.

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

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

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

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

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

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

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

¹ III., n. 609.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

² Attenborough, p. 184.

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

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

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

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

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

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

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

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

And again : —

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

⁴ Ibid., p. 47.

8 Attenborough, p. 16.

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

5 Attenborough, p. 89.