Possessor in Good, Bad, or Dubious Faith

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A possessor is a person who exercises actual control over a thing in such a way that he can dispose of it at will, regardless of whether he enjoys rightful ownership of it. An owner, on the contrary, is a person who has full right to dispose of a thing, with or without the corresponding exercise of that right. Ownership thus indicates a condition of right, whereas possession is merely a condition of fact, which may, nevertheless, be protected by law and be productive of juridical effects.

This article will treat the possessor's rights and obligations in relation to the owner, whether they concern the property itself, the income derived from it, or the expenditures incurred during the period of possession. Since these rights and obligations vary according to whether the possessor is in good, bad, or doubtful faith, each kind of possession requires separate consideration.

In Good Faith. A possessor in good faith is one who sincerely believes that property in his possession belongs to himself when in fact it belongs to another. Thus he is unaware that he is violating another's rights. His obligations and rights are as follows.

In Relation to the Property Itself. (1) As soon as he becomes aware that the property belongs to another, he is obliged in justice to restore it to its lawful owner, if it still exists. (2) He is absolved from further obligation in justice if the property has perished and he is no richer for having had it in his possession. The same is true if he has given it away, although in this case, if it can be done conveniently, charity requires either that he admonish the present possessor to restore the property to the owner, or that he bring the matter to the owner's attention so that the latter may recover his own property. (3) He acquires true ownership of the property in question if he fulfills all the requirements for lawful prescription.

In Regard to the Products. (1) Since a thing fructifies to its owner, the possessor in good faith must restore to the owner the products of his property, whether they be natural products, such as animal offspring, or civil products, such as rent from his house. However, the possessor is not obliged to restore industrial products, or the fruits of his own labor, such as profits realized from a business. (2) Modern codes of civil law frequently allow the possessor to retain all products, whether natural, civil, or industrial, which he acquired during his period of good faith. The prescriptions of civil law may be safely followed in conscience.

In Regard to Expenditures. The possessor in good faith is entitled to compensation for all necessary and useful expenses incurred in the maintenance or improvement of the property. No compensation is due him, however, for superfluous expenses, that is, for those that have not benefited the owner, or which the latter would not have reasonably authorized.

In Bad Faith. A possessor in bad faith is one who culpably takes or keeps a thing that he knows to be the property of another. In general, he is bound to repair all foreseen damage caused to the lawful owner. Therefore:(1) He must restore the property itself, if it still exists, or its equivalent, if it has perished or passed into the hands of a third party. (2) He must compensate the owner for all ensuing loss, so that the owner receives as much as he would have had if he had not been unjustly deprived of his goods. This obligation, of course, presupposes that the unjust possessor foresaw the losses at least indistinctly. (3) Like the possessor in good faith, he must restore all natural and civil products, but may retain the fruits of his own labor, and is entitled to compensation for necessary and useful expenses. (4) Unlike the possessor in good faith, he may never acquire ownership of the property by prescription.

In Doubtful Faith. A possessor is said to be in doubtful faith if he has serious reasons for questioning the lawfulness of his possession. Since his obligations differ according to whether the doubt was present at the beginning of his possession or arose only during its course, both alternatives must be considered separately. In either case, however, he must undertake a reasonable investigation in proportion to the seriousness of his doubt and the value of the property in question.

When Doubt Is Subsequent to Possession. (1) If such a doubt persists after a diligent inquiry, the possessor may keep the property, since in this case the presumption is in his favor. (2) If, on the contrary, he discovers that the property belongs to someone else, he has the same obligation to make restitution as the possessor in good faith. (3) If he culpably neglects to settle the doubt, he becomes a possessor in bad faith.

When Possession Begins with Doubt. (1) If the disputed property had been taken away from another who possessed it in good faith, it must be restored to the former possessor since here the presumption supports his claim. (2) If, on the other hand, the property had been acquired by legal title, for example by purchase or donation, from a possessor in good faith, after fruitless attempts to dispel the doubt, the present holder may retain the disputed object. (3) If the property was acquired from a person in doubtful faith, or from one whose good faith was reasonably suspect (because, for example, he was known to have stolen in the past), and this doubt persists after the inquiry, the possessor must, according to the degree of his doubt, make restitution to the probable owner, or to the poor, if the owner is completely unknown.

Bibliography: d. m. prÜmmer, Manuale theologiae moralis, ed. e. m. mÜnch, 3 v. (12th ed. Freiburg-Barcelona 1955) 2:207222. h. noldin, Summa theologiae moralis, rev. a. schmitt and g. heinzel, 3 v. (Innsbruck 196162); 2:437452. h. davis, Moral and Pastoral Theology, rev. and enl. ed. by l. w. geddes (New York 1958) 2:317325. f. roberti et al., Dictionary of Moral Theology, ed. p. palazzini et al., tr. h. j. yannone et al. from 2d Ital. ed. (Westminster, Md. 1962) 92.6935. s. woywod, "Possessory Actions or Remedies," Homiletic and Pastoral Review 31 (1931) 957965.

[j. j. mcdonald]