Unjust Possessors

Preliminary note I. Another's thing can be possessed in two ways, in itself and in equivalent. It is said to be possessed in equivalent when someone no longer possesses it, but nevertheless from it as such has become richer, or has more than he would have had if he had not possessed another's thing. This happens when someone: 1° sold another's thing received gratuitously; 2° by consuming or donating another's thing, received gratuitously, spared his own things; 3° sold at a profit another's thing which he had bought. He is not numbered among these who has received fruits from another's thing, because he has become richer not from the thing as such, but from its fruits.

Preliminary note II. The possessor of another's thing is distinguished in three ways, namely, as a possessor in good, doubtful, and bad faith (n. 776). But the obligation of restitution arising from the possession of another's thing can regard: 1° the thing itself; 2° the fruits of the thing; 3° damages following for the owner from the fact that his thing was possessed by another; 4° expenses made by the possessor concerning another's thing.

With these things noted in general beforehand, we shall speak singly about the different possessors.

¹ Cf. Vermeersch, Epitome, t. II, n. 851 sq.; Raus, Institutiones canonicae, n. 361 sq.

² Cf. Bonartz, Die Restitutionspflicht des Besitzes fremden Gutes; Kutsekker, Die Lehre vom Schadenersatze; Hohenlohe, Gründe der Schadenersatzpflicht in Recht und Moral.

1. Gervasius, supreme Minister of the interior order in a kingdom, knows well that from his weak and negligent manner of acting many damages have come to private persons on account of public robbers and highwaymen, and likewise many damages have come to the Society itself and to several civil Communities, on account of the unjust administration of public affairs, and especially on account of unjust taxes, by which certain particular Communities were overburdened.

Nevertheless he himself thinks that in truth he is not bound to any restitution, because, he says, with my conscience as witness, I have killed no one, and I have stolen nothing, nor have I unjustly received anything from anyone, or even from the Government.

Q. 1. Whence does the obligation of restitution arise? — 2. What as to the Case?

R. To the 1st. Cf. I. M. 1319 seqq. — To the 2nd. Gervasius, on account of grave negligence in preventing delicts, in punishing crimes, in watching and prescribing the due ordinances to be observed, certainly was the cause why private persons and Communities suffered grave damages. Wherefore he is certainly held to restitution. For he is guilty of neglected office and of a violated contract, by which he implicitly obligated himself to prevent damages to his subjects. As to damage inflicted on private persons, restitution must be made to those private persons themselves. As to damage inflicted on Communities, restitution must be made to the Communities themselves.

Gervasius is likewise guilty by reason of unjust cooperation toward injurious acceptance. For someone is held to restitution not only by reason of the alien thing which he accepted, but also by reason of the injurious acceptance. And therefore whoever is the cause of an unjust acceptance is held to restitution. Now Gervasius was the cause of that acceptance, both directly, by the iniquitous and unjust administration of public affairs, and indirectly, by not impeding it when he could and ought to have done so. And thus St. Thomas, 2.2. q. 62. a. 7, says: To restitution “he is held who does not oppose when he is bound to oppose; as princes, who are bound to keep justice in the land, if through their defect robbers increase, are held to restitution, because the revenues which they have are, as it were, stipends instituted for this, that they preserve justice in the land.”

Gervasius is besides guilty of rapine, which to the malice of theft adds the malice of violence and of personal injury. S. Thom. 2.2. q. 66. a. 5.9. Rapine indeed is had by coercion brought to bear for paying unjust taxes, and for carrying out other unjust laws, e.g., usurping ecclesiastical goods, etc. Appositely the same Angelic Doctor, in the cited place, a. 8: “It must be said that rapine imports a certain violence and coercion, by which, contrary to justice, that which is his own is taken away from someone. But in the society of men no one has coercion except through public power; and therefore whoever by violence takes something away from another, if he is a private person, not using public power, acts illicitly and commits rapine, as is plain in robbers. But to princes public power is committed for this, that they be guardians of justice; and therefore it is not lawful for them to use violence and coercion except according to the tenor of justice: and this either by fighting against enemies, or by punishing citizens who are evildoers; and that which is taken away by such violence does not have the character of rapine, since it is not contrary to justice. But if, contrary to justice, some persons through public power violently take away the things of others, they act illicitly, and commit rapine, and are held to restitution.... If Princes exact from subjects that which is owed them according to justice for preserving the common good, even if violence is employed, it is not rapine. But if Princes unduly extort something by violence, it is rapine, just as also robbery.... Whence they are held to restitution, just as robbers are; and they sin so much more gravely than robbers, as they act more dangerously and more commonly against public justice, whose guardians they have been placed.” — I. M. 1320, 1323.

2. Caietanus, the servant of a priest, steals from his master one hundred lire, enclosed in a certain schedule, upon which was written: alms for 50 Masses, which in the months of November and December must be celebrated for the deceased Lord Eligius. Caietanus hid the aforesaid sum in a certain secret place. Then, seeking it, he no longer found it.

Q. 1. Must restitution be made from unjust acceptance? — 2. Must Caietanus restore the one hundred lire to his master, or is it enough that he have 50 Masses celebrated by some priest in the aforesaid months, with an alms of 100 lire given?

R. To the 1st. Affirmatively. “The very acceptance of another’s thing can stand in three ways. For sometimes it is injurious, namely existing against the will of him who is the owner of the thing, as is plain in theft and rapine; and then he is held to restitution, not only by reason of the thing, but also by reason of the injurious action, even if the thing does not remain with him. For just as he who strikes someone is held to recompense the injury to the one who suffered it, although nothing remains with him, so also he who steals or plunders is held to recompense the damage inflicted, even if he has nothing from it; and further he ought to be punished for the injury inflicted. — In another way someone accepts the thing of another for his own utility, without injury, namely with the will of him whose thing it is, as is plain in loans for consumption; and then he who has accepted is held to restitution of that which he accepted, not only by reason of the thing, but also by reason of the acceptance, even if he has lost the thing; for he is held to recompense him who did a favor, which will not be done if by this he incurs damage. — In a third way someone accepts the thing of another without injury, not for his own utility, as is plain in deposits, and therefore he who has so accepted is held in nothing by reason of the acceptance; indeed, rather, by accepting he renders service. But he is held by reason of the thing. And on account of this, if the thing is taken away from him without his fault, he is not held to restitution; but it would be otherwise if through his great fault he lost the thing deposited.” S. Th. 2.2. q. 62. a. 6; I. M. 1327.

To the 2nd. From what was said in the response to the 1st, it is plain that Caietanus is altogether held to restitution, although he no longer has the one hundred stolen lire, but has lost them, or another has stolen them. “And therefore,” the Angelic Doctor proceeds in the cited place, ad 1, “although he who took the thing does not have what he accepted, but it has been transferred to another, because nevertheless the other is deprived of his thing, he is held to restitution to him, both he who took the thing by reason of the injurious action, and he who has the thing by reason of the thing itself.” But it is not enough that he himself have the aforesaid Masses celebrated, but he must restore the aforesaid stipend of the Masses to his master; otherwise there would not be restitution. “Through restitution there is made a reduction to the equality of commutative justice, which consists in the equalizing of things. But an equalizing of things of this sort could not be made unless, to him who has less than what is his own, that which is lacking were supplied. And for this supplying to be made it is necessary that restitution be made to him from whom it was accepted.” S. Th. 2.2. q. 62. a. 5.

3. A certain Bonze, prepared to bid farewell to the errors of ethnic superstition and to give his name to the holy Catholic Church, asks that it be permitted to him to retain the things which he had previously received in the ethnic office which he exercised, and the things which he had acquired in the exercise of the medical art.

R. He is not to be disturbed, provided certain injustice has not intervened from elsewhere. And indeed no doubt is to be raised as to the emoluments of the medical art, since they hold the place of wages. Likewise, the things which the Bonze sought for himself from the priestly office among the pagans, although they flowed from a superstitious source, nevertheless seem to have come to him legitimately, as things which were proper to the pagan people, and by its consent attributed to its priests in place of an honorarium.” Provided certain injustice has not intervened from elsewhere; for justice, proceeding from the law of nature itself, obtains force among all peoples everywhere. Therefore if there are things which the Bonze knows certainly that he unjustly received, whether in the exercise of the medical art or of the priestly office, it is necessary that he restore them to the owner, or to his heir; or, if both are uncertain, they are to be distributed to the poor. S. O. 14 Jan. 1846; Collectan. S. C. de P. F. n. 2117.

4. Hesperus, having Elisa, a daughter of marriageable age, whom he is unable to dower, furtively stole from Heraclitus one thousand lire, with which he was easily able to join her in marriage with Gensericus. After some years from the marriage, Gensericus learns that the dowry brought to him by his wife had all been taken from Heraclitus by thefts.

Q. 1. Must restitution always be made from another’s thing? — 2. What must be done in the Case?

R. To the 1st. Affirmatively. “By reason of the thing he is held to restore it so long as he has it with him; because that which he has beyond that which is his own must be taken from him and given to him to whom it is lacking, according to the form of commutative justice.” S. Th. 2.2. q. 62. a. 6; I. M. 1331 seqq.

To the 2nd. “If the spouse still preserves the dowry distinguishable from other monies, he must restore it, unless it has been prescribed in good faith, for every thing cries out to its owner; and the spouse must be numbered among those who, thinking they were marrying a rich woman, married a poor one. But if it was in good faith mixed by him with his own goods, similar in quality and greater in quantity, so that it cannot be separated, he is held to nothing; because by Common Law the dowry is considered morally consumed, Gloss on L. 78 ff. de Solut. Nor should you object: this man is held to that in which he has become richer; for since the dowry was given to him for sustaining the burdens of marriage, and he perceived no profit for himself from it, he has been made richer in nothing. Sporer, Croix. There are nevertheless some who wish that, standing in the law of equity, something to be restored ought to be cared for by the spouses. Certainly Hesperus the father would always be held for the theft, so long as he was able; for he dowered his daughter from the goods of another. Liguori l. 3. n. 612.” Scav. l. 2. n. 751.

But in truth not only from the law of equity, but also from strict justice, the spouse is held to restitution, even if that stolen money has already been mixed by him with his own money in a greater quantity. For although by the more recent Law the whole heap is his, nevertheless he has the obligation of rendering the owner of the stolen money unharmed, by reason of his thing, which he equivalently has. I. M. 907. Nor truly can anything else be drawn from the cited place of St. Alphonsus.

302. A possessor of bad faith is one who culpably detains a thing which he knows belongs to another. Hence by a twofold title he is bound to restitution, insofar as he is the unjust possessor of another's thing, by reason of the thing received, and insofar as he has inflicted damage, by reason of unjust taking. Therefore he must not only restore the thing itself with its fruits, but also compensate all damages following from his unjust action.

303. The general principle is: A possessor of bad faith is bound to restore insofar as he has damaged; whence the measure of restitution is the quantity of damage inflicted. In particular:

A. As to the thing itself: 1) As the unjust possessor of another's thing, he must restore to the owner the thing itself, if he has it, or an equivalent thing, and hence everything in which he has been made richer from it, and as soon as morally possible, unless the owner would be unreasonably unwilling to the delay; because no one ought unjustly to be enriched from another's thing.¹

¹ Nor is recourse given against the seller for recovering the price, because the buyer knew the thing belonged to another (a. 1629).

But if another's thing has successively been possessed by several with bad faith, first of all restitution must be made by him who detains, consumed, or lost the thing; failing him, the robber is bound; and when these fail, the rest are bound according to the rules of restitution in solidum, concerning which in the following article.

2. As an unjust damager, he is bound to repair all detriments which he foresaw at least in confusion would follow from the unjust retention, even if he has been made richer in nothing; because he is the cause of all these.

Hence a) if the thing has been consumed or has perished, even without his fault but by fortuitous chance, he must restore its price, at least if the thing would not certainly have perished with the owner at the same time;

b) if the thing was made worse, while with the owner it would have remained whole, he is bound to compensate the damage;

c) if the owner has undergone some emergent damage, because, for example, he had to buy another thing at a higher price, this also must be repaired.

B. As to fruits, he is bound to restore 1) all fruits (natural, industrial, civil), expenses being deducted, perceived from another's thing, even if the owner would not have perceived them, even if they have been consumed, although from them the possessor did not become richer. For the thing bears fruit for its owner;

2. all fruits which the owner would legitimately have perceived, although the possessor did not perceive them, because he was the unjust cause of this damage; nevertheless this is not to be repaired entirely, but according to the proportion of the probability of the ceasing gain, or of the hope of obtaining it, according to the condition of persons and business affairs (q. 62, a. 4);

3. all fruits perceived by others, if they have not restored them, because he is the cause of this damage by cooperation.

But fruits of the person or of industry alone, which were perceived only on the occasion of the thing, are not to be restored, as being fruits not of the thing but of one's own labor. Thus these need not be restored: hens from the eggs of another, trees taken by theft and planted in one's own field, profit from trading or gambling with deposited money, although one acting thus sinned; but generally it suffices to pay the price of the eggs, of the small trees, of the legal increase, unless, however, further damage was caused.

C. As to expenses, he can deduct 1) necessary and useful expenses (a. 1381); but not pleasurable expenses (a. 1635). But ornaments which can be removed with the substance of the thing preserved and without detriment to it, he can retain for himself.

Thus unless civil law determines otherwise, such as the law in England and in the United States of America, according to which the owner need not refund expenses made by a possessor of bad faith.

304. What if the thing would have perished at the same time with the owner? — Resp.:

1. If the thing certainly would have perished at morally the same time and by the same cause as it perished with the thief, for example, by the same fire, earthquake, shipwreck, incursion of enemies, or from an intrinsic defect of the thing, as a horse from old age, the thief is not bound to restitution of the thing, because he is not the efficacious cause of the damage, nor was the condition of the owner made worse, although nevertheless other damages following from unjust detention are to be repaired.

2. If the thing certainly would have perished at the same time but not by the same natural cause, for example, if two ships perish at the same time, or if the thing perishes by fire with the thief while it would have perished by water at the same hour with the owner, probably it need not be restored, because the owner suffers no damage from this as to the thing; just as neither is he bound to restore who consumed the thing in the same place and around the same time at which, from a natural cause, it would certainly have perished, as from fire, because neither is he the cause of the damage.

3. If, however, the thing would have perished at the same time with the owner from the injustice of another, the thief is bound to restore its price, because the owner suffers damage from the theft: for if the thing had not been taken away, another would have contracted the burden of restoring, and from this other the owner could have recovered it.

4. If the thing would not have perished at morally the same time, the thief is bound to restitution, even if he rescued the thing from danger: for then the thing was unjustly detained for some time by the thief. Thus if someone saves a thing which otherwise was going to perish by fire or waters, he is bound to restore it; he could have not saved it, but, if he saves it, he saves it not for himself but for the owner.

By French civil law (a. 1302, in force among many nations; Italian, a. 1298; Spanish, a. 457), a possessor of bad faith is bound to restitution of the price of the thing in whatever way the thing has perished in his hands. Nevertheless this disposition, insofar as it adds to natural law, can be regarded as a penal clause, whence it does not obligate before, but only after, the sentence of a judge.

305. What must be restored, if the thing during the time of unjust detention had a varied value?

R. Per se the highest value is to be restored, which certainly must be done if the owner is unjustly deprived of this increase, namely: 1. if he himself, since he is vigilant, would have sold the thing at the highest price; 2. if he had to buy another equivalent thing at the highest price; 3. if the unjust possessor became richer from it, for example, because the thing grew in itself, as if a calf matured, for the thing grows for its owner; or 4. on the contrary, if the thing was made worse and would not have been so with the owner.

In practice, however, it will often be difficult to determine whether it is so. In doubt, restitution is to be urged only according to the price of the thing at the time of theft, or according to the greater price for which the owner had to procure another for himself.

306. A possessor of doubtful faith is one who, from a grave and truly probable reason, doubts whether the thing which he detains is his own or another's; whence a negative or very slight doubt does not render a possessor of doubtful faith. Doubtful faith can be antecedent, if it preceded the very receiving of the thing and the possessor received the thing in doubtful faith; or supervening or subsequent, if the possessor began to possess the thing in good faith, but after the receiving of the thing a doubt arose.

A possessor of doubtful faith must diligently investigate the thing; and according as he acts justly or unjustly, he is reduced to a possessor of good or bad faith.

307. In the case of antecedent doubtful faith:

1. if someone occupies a thing occupied here and now by no one, he is bound to inquire concerning the owner and to act in the same way as was said concerning lost things; but if he neglects to inquire, he becomes a possessor of bad faith, and nothing can be retained, but the whole must be handed over to pious causes;

2. if by a doubtful title he takes away a thing and despoils a possessor who is not of bad faith, for example, probably judging that he has a right to part of an inheritance, he is assimilated to a possessor of bad faith and must restore the whole thing to the possessor; because in doubt the condition of the possessor is better. In the case, he ought to have recurred to the judge;

3. if by a legitimate title (for example, donation or purchase) he acquired a thing from a suspect possessor, doubting whether the latter is truly the owner, he is bound to restore at least according to the proportional part of the doubt (that is, according to the weight of reasons) to the probable owner, and failing him to a pious cause: he cannot retain the whole because he began possession without good faith and exposed himself to the danger of possessing another's thing; nor is he probably bound to render the whole, because it is not certain that the thing belongs to another.

Exception: a) if he acquired the thing from a possessor of good faith and after due inquiry an insoluble doubt remains: for then, although perhaps he sinned because of doubtful faith in acquiring, nevertheless he can consider himself as one possessor with his predecessor, so that the possession can be said to have begun in good faith, and the doubt is considered as supervening;

b) if he bought or received the thing with the intention of inquiring concerning the owner and rendering the thing to him as soon as he can be found: for then he begins to possess with good faith, and he can detain the thing until the owner appears. But if he culpably neglected to inquire concerning the owner, and because of the neglected inquiry it is now impossible to solve the doubt, he is now equated with a possessor of bad faith, and according to the proportion of the doubt, that is, according to the weight of reasons, he must restore to the probable owner or to a pious cause, in the same way as was said above.

308. In the case of subsequent doubtful faith: when a doubt has arisen, he is bound from justice diligently to investigate the truth, with that diligence which is proportioned to the value of the thing and the gravity of the doubt; otherwise he becomes as a possessor of bad faith. But he must:

1. before the inquiry is finished, not alienate nor consume the thing, but preserve it;

2. after diligent inquiry has been made, a) if it is certainly or almost morally certainly established that the thing belongs to another, he must restore it in the same way as a possessor of good faith; b) if the doubt perseveres, he can retain the thing and dispose of it, because in doubt the condition of the possessor is better. Therefore he again becomes a possessor of good faith; whence he can use the thing and consume it, as was said concerning a lost thing, indeed sell it, provided that he warn the buyer concerning the doubt, lest the latter be deceived;

3. if he has omitted the inquiry from grave negligence, he becomes a possessor of bad faith and is bound thereafter because of damage perhaps arising, and therefore:

a) if the owner is afterward found, he must repair the whole to him;

b) if because of the neglected investigation it is now impossible to solve the doubt, he is bound to restore according to the proportion of the doubt, when the doubt concerned a right which some determinate man perhaps had in that thing: for then that man is thus deprived of some probable hope of obtaining that thing; but this hope, according to greater or lesser doubt, can be estimated at a price by prudent judgment.

Generally St. Alphonsus thinks that then the quantity to be restored is much less than half the value of the thing, since possession had been begun in good faith. Therefore this restitution must be made to that man (or to his heirs), if he is known; but if he cannot be known, it must be made to the poor or to a pious work.

It is said: if the doubt concerned the right of some determinate man; for if the doubt was not concerning someone determinate, but indeterminately, sin indeed has been committed because of the neglected investigation, and more commonly they judge that even then restitution must be made to the poor; which therefore is to be counseled, for the possessor is in some way in bad faith. Nevertheless the matter is not altogether certain, since some judge that then damage effectively inflicted is not established, since possession was begun in good faith and there is no one who can contend against the possessor concerning the thing possessed.

XII. QUESTION VIII. How is a possessor in good or in bad faith held to restitution? ANSWER. A possessor in good faith is he who, invincibly reckoning another's thing to be his own, possesses it. A possessor in bad faith is he who knowingly retains another's thing, or who by vincible or affected ignorance persists in the possession of another's thing. A possessor in good faith can consume and sell another's thing so long as he perseveres in good faith; but as soon as he observes that the thing is another's, he is liable to restitution: because if he be in delay, he becomes a possessor in bad faith, unless a completed prescription go before. If, after he has consumed the thing, he observes it to be another's, he is bound to restore that in which he has been made richer. But if the thing subsist, if not in kind, at least in an equivalent, then you are bound to restore it. You have eaten another's thing, thinking it your own, and have preserved your own. Then another's thing exists equivalently in yours. Therefore you ought to restore it. But if you had consumed nothing of your own, you are held to nothing, because you have been made richer by nothing. If you doubt whether you have been made richer by another's thing, then the matter is to be settled in proportion to the doubt, at the arbitration of wise men.

XIX. QUESTION XII. How ought a possessor of doubtful faith to restore another's thing? ANSWER. A possessor of doubtful faith can be regarded at the beginning of possession and in its progress. He who doubts that a thing is another's, and buys it not to be handed over to the lord but that he may retain it for himself, is a thief, and is held to restitution both by reason of the thing received and of the unjust acceptance, even with the danger of losing the price: because he willingly subjects himself to this danger. Wherefore he ought to use diligence to find the true lord, to whom he may hand over the thing bought. If after moral diligence he does not find the lord, and the doubt ceases, he becomes a possessor of good faith, and can by right retain the thing for himself. If the practical doubt persevere, the thing is to be divided among the poor, the price paid in the purchase being retained in proportion to the doubt. If the doubt occur in the progress, and the thing was consumed before any doubting, he ought to restore that in which he has been made richer: if the thing exist, diligence is to be used that the lord be found, and in proportion to the doubt the matter is to be settled by the counsel of prudent men; nor does that rule avail: the condition of the possessor is the better.