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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 40

 

The Mere Taking or Receiving

 

We say the mere taking or receiving to emphasize the point that here there is no question of fault or guilt.  The following, therefore, applies to someone who is in possession of the goods or property of another in good faith.

 

The applicable General Principle states:  A possessor in good faith is required to make restitution:

 

(a)    As soon as conveniently possible after he becomes aware of the fact that he is in possession, without a justifying reason, of something that belongs to another.  Together with the goods restored, he is also required to surrender to the rightful owner whatever “fruits” the said property has generated while it was in his good faith possession.

 

(b)    In the event that, after having surrendered the property in question to its owner, further “fruits” generated by that same property come into his possession, he is required to hand them over, too.

 

The principles that come into play with regard to (a) and (b) respectively are:  A thing [property] cries out for its owner [master], and a thing bears fruit unto its owner.

 

Accordingly, there are some rules that apply to a possessor “in good faith”:

 

1.       During the time he has the property in his possession, he may make use of them in whatever way he sees fit.  If it turns out that he discovers that the property really belonged to another AFTER a certain statutory time has elapsed, then the property and all its fruits are his by virtue of “prescription” [adverse possession].

 

2.       When he first learns that the property is really someone else’s, he is obliged to act as a “fiduciary” [trustee} and make reasonable good faith efforts to preserve and use profitably the said property until he is able to surrender it and its fruits to their rightful owner.  In the event he is unable to surrender them, or transfer title to same, within a reasonable brief interval of time, he must at least notify the rightful owner that he has custody of the goods or property.

 

3.       If, while he is in good faith possession of the goods or property, it shall have perished, or been used up or lost, then the obligation to make restitution ceases.  The principle is:  When a thing perishes, it perishes unto its master [owner].  If, however, he shall have sold it, and still is in possession of the proceeds of the sale, it is the latter that he must restore.  Of course, if the property (or the proceeds of its sale) is only partially diminished or partially used up, then only what remains needs to be surrendered to its true owner.

 

With regard to the fruits the goods (or the object) may have generated, there are also a few rules:

 

1.       If the fruits generated are the result ONLY of the industry of the possessor in good faith, e.g., using tools or instruments that rightfully belong to another, such that the possession of the property was merely the occasion of the fruits generated, then he has no obligation to surrender those personal fruits.

 

2.       When it is a question of “natural fruits” [of fields, of farm animals and the like], these are to be restored, less whatever costs have been incurred in collecting and/or preserving them, provided, of course, they still exist.

 

3.       When it is a question of “mixed fruits”, that is, they are not generated naturally and spontaneously, but require husbanding or cultivation on the part of the good faith possessor, then the good faith possessor may keep that portion of the fruits that rightfully correspond to the extent of his efforts in making the property in question bear fruit.

 

With regard to rules (2) and (3) just stated, which is based on “natural law”, it has happened that certain countries have replaced it with the rule that a possessor in good faith may keep all of the fruits that were engendered or produced during the time he was in ignorance of the true ownership, even if they still exist.  The reason being that it contributes to the common good, insofar as the said positive law prevents long and costly litigation on matters that would entail inextricable difficulties, and would also preserve the possessor in good faith of being liable for large sums which he would be unable to pay.

 

We may turn now to Article III, where the taking or receiving AND detention are unjust, so that the one holding what belongs to another is called a possessor in bad faith.

 

The general rule applicable to this situation is:  A possessor in bad faith is obliged to make restitution to the full extent that the rightful owner is harmed.

 

Again, there are a few rules that apply:

 

1.       The obligation to make restitution arises immediately upon the unjust taking or receiving, and continues to bind all the while the property unjustly remains in the possession of the unjust possessor.  In the event of repentance, however, it may not be possible for the now “good faith” possessor to make restitution immediately thereafter, in which case the rightful owner must be notified and assured that it will be made as soon as conveniently possible.  The possessor must then act as the “trustee” of the property as stated in Article II above.

 

2.       If, while one is a possessor in bad faith the goods or property shall have perished, or have been used up, or lost, the fact of the unjust taking or holding of the thing gives rise to the obligation to make restitution in the form of an equivalent compensation.  Should the possessor in bad faith have sold the goods for more than its value, the extra must also be restored.  If it is sold for less, the true value must nevertheless be restored.

 

3.       In virtue of the unjust taking or receiving, and/or unjust holding, the measure of restitution also includes any subsequent losses incurred by the rightful owner as a result of being deprived of his rightful property.  That is, above and beyond the value of the thing itself and any natural “fruits” it may have generated.

 

4.       If it so happens that, while the possessor in bad faith is holding and using the property of another to his own enrichment, he is obliged to incur expenses in order to “preserve” the property or “cause” the property “to bear fruit”, he may deduct the said expenses in the amount the rightful owner would also have had to pay out to preserve the property and make it bear fruit, had it never been unjustly taken from him.

 

However, a civil government may decide to replace this rule (4) with the rule that the true owner is NOT OBLIGED to allow the holder in bad faith to deduct expenses required to preserve and make the property bear “fruit”.  Since the unjust taking/receiving and or possessing would be a “crime” in such a country, the new rule would be in the nature of a sanction [punishment] the state may rightfully impose upon criminal conduct.

 

5.       With regard to the goods or property and any “fruits” thereof still extant, in the event that a natural disaster, such as earthquake, flood, hurricane, etc. destroys them, and would have destroyed them regardless of who was in possession of them at the time, the possessor in bad faith is NOT OBLIGED to make restitution FOR THEM, although he must make restitution for all the other fruits that are not destroyed.

 

In addition to the above two kinds of taking/receiving or holding property, my textbook treats of a third possibility:  that of a possessor in doubtful faith, and the author distinguishes “antecedent” and “subsequent” [to taking/receiving] doubt.  In either situation, when the doubt arises, the individual in question must make good faith and reasonably diligent efforts to resolve the doubt.  And, depending upon the outcome of the investigation, he becomes either a possessor in good faith or a possessor in bad faith.  Of course, if no attempt at all is made to resolve the doubt, the possessor automatically becomes a possessor in bad faith, although, in this situation, he would not know TO WHOM the obligation to make restitution is owed.  And although my author does list a few hypothetical cases as examples, and the rules governing in each case, they seem to me to be quite unlikely to occur in ordinary circumstances.  Therefore, I will skip over them.  However, very important is the following:

 

Article IV – Unjust Cooperation…

 

Unjust cooperation may be described as “any help given and joined to the effort of another in the performance of an unjust deed”.  It may be direct AND positive or indirect AND negative, depending upon whether something is actually done, or whether something is not done that ought to have been done.

 

Both can happen in several ways.  The positive and direct assistance is tendered by (i) ordering or commanding (ii) counseling or advising (iii) consenting or agreeing (iv) praising the one who does the unjust deed.  These serve to “motivate” the malfeasor.  Direct help is clearly also given by (v) providing the means or instruments needed or (vi) by physically joining in the unjust taking/receiving and possessing.

 

Indirect and negative assistance is given by (vii) failure to command, counsel, and otherwise try to motivate against the performance of the unjust act when one is in a position to do so and ought to do so (viii) failure to physically prevent the unjust deed when one can and should, and (iv) by concealing or “covering up” after the deed is done.

 

Since all of the above represent various degrees of unjust cooperation, all the perpetrators share in the “guilt” of the sin committed.  However, the obligation to make restitution is not necessarily linked to all of them.  When it does, however, it is in varying degrees, as is evident from the following:

 

Principe I – Unjust cooperators are bound to make restitution to the extent they have efficaciously contributed to the harm inflicted upon the rightful owner.

 

The principle is stated in this way because an unjust cooperator might try to deny the obligation to share in the restitution by claiming that the actual perpetrator would have committed the crime anyway.  As stated in a previous conference, the obligation arises whenever someone is (a) guilty of (b) an unjust deed that (c) actually results in harm to the rightful owner.  Therefore, only when it is clear that the unjust deeds of ordering, counseling, praising and otherwise “motivating” the malfeasor to perpetrate the unjust taking/receiving have really influenced and helped “cause” the said conduct, does the obligation to make restitution clearly bind.  Theoretically, when there is a really serious doubt, then there would be no obligation to contribute a fair share in the restitution owed.

 

But practically speaking because of the extreme difficulty in resolving any doubts concerning condition (c) above, any kind of doubt would exempt from restitution, because these kinds of doubts are always to be resolved in ways that bring peace of conscience, rather than to burden conscience.

 

Principle II – Cooperators in inflicting harm upon another are jointly obliged to make restitution.  This means that in the event one or two (or more) cooperators is unable to join in the restitution, the others are liable for the entire restitution.

 

According to my author, this principle applies when the consequences of the joint action of the unjust cooperators cannot be morally separated, that is, when it cannot be shown that a part of the harm is clearly attributable to the action of one of the cooperators, and the rest or another part clearly attributable to another.  When the consequences, i.e., the elements of harm, CAN be morally separated, so then is the obligation to make restitution.  He also points out that, even though only one of the “joint” malfeasors has made complete restitution, the other or others are not thereby absolved of their obligation to contribute their fair share.  In this situation, the obligation of the other cooperators is directed to the one who has satisfied the entire obligation, who can then use legal means to compel the other joint malfeasors to reimburse him.

 

 

 

 

 

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