Summa summae S. Thomae, Tomus III

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

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

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

2° If the owner reclaim his thing, whether juridically or privately, the buyer is held to render it to him, and he will certainly be condemned by the judge to do so, as the adversaries themselves confess. Yet the claim does not confer upon the owner the right that his thing be restored immediately to himself, but supposes it, and by omitting to claim because of ignorance he does not lose such a right. Therefore restitution is owed even to one who does not claim.

3° If the thief does not appear, or the buyer cannot recover his price from him, he cannot sell that thing to another or convert it to his own uses, so as to keep himself whole, by admission of the adversaries themselves. Therefore neither is he to restore it to the thief.

4° Therefore, according to the adversaries, the buyer in good faith can render the thing to the thief, because in this he does no injury to the owner, since he puts his thing back into the same state in which he found it before, and from which he is not bound to draw it out with equal loss to himself. This is the principal foundation of the contrary side. But what is assumed is false, namely that in this no injury is done to the owner : 1° because it is false that the thing is put into the same state as before; for the thief, aware that he comes under suspicion of theft, will conceal the thing more carefully or alienate it farther off, and thus it will be in a worse state than before, because more difficult to recover. 2° Given that the thing is not put into a worse state than before, at least it is put into a worse state than it is in fact in with the buyer, where it is secure. Yet this does not happen without injury to the owner. Therefore. — Proof of the minor. The improvement of a thing, of whatever sort, belongs to the owner, to whom it always and everywhere cries out. Yet the state of security with the buyer is a certain improvement of the thing. Therefore it cannot be drawn out of that state and put into a worse one without injury to the owner.

You will object: No one is bound to procure another's good or to impede his damage at equal loss to himself, unless he be bound thereto from contract, or quasi-contract, or from debt. Therefore the buyer in good faith is not bound to render to the owner with the loss of his price.

I answer. I distinguish the antecedent. No one is bound to procure another's good at his own loss, if the procuring of the other's good is the cause of the loss; let the antecedent stand; otherwise, I deny the antecedent. But here the rendering of the stolen thing to the owner, wherein lies this procuring of his good, is not the cause of your loss or of the loss of your price; for that was already lost beforehand, when you handed it over to the thief: but the cause was either the malice of the thief, or your imprudence or misfortune. This distinction must be carefully retained for solving arguments from parity, which are the harder ones.

You will ask whether, if someone in good faith buy a stolen thing, and sell the same in good faith to another, that thing ought still to be rendered to its owner.

I answer, affirmative; for the same reasons are always at work as before.

But at whose loss? Of the first, or of the second buyer?

I answer. At the loss of the first buyer, who must rescind the contract with his buyer, rendering to him his price, and render the still existing thing to its true owner. Nor does it suffice if he cede to the second buyer the action he has against the thief, with whom the second buyer had no dealings whatsoever. The reason is that, although perhaps the seller acquires dominion over the price according to the civil laws, of which below, treatise on Contracts, dissertation IV, a. 6, § 1; nevertheless that dominion is weak and encumbered, inasmuch as the seller is bound, according to those same laws and the nature of the contract, on account of the eviction of the thing sold, that is, he is held to keep the buyer whole, if the thing bought is to be rendered to its owner, as it must be in this case : consequently he is held to pay back the price to him.

But greater is the difficulty in the case where the second buyer does not appear, or the thing is consumed: is the first buyer held to pay back the price to the owner of the thing?

I answer, more probably, that he ought to render that price to the owner of the thing, by reason of the received thing still existing, not indeed in itself, but in its value. Because the second buyer does not intend to transfer the dominion of his money except to the owner of the thing, and except insofar as the dominion of the thing sold is transferred to himself. Yet the first buyer is not the owner of the thing, nor does he transfer its dominion to the second buyer, nor is it transferred by any law. Therefore the first buyer is held to restore that price; and since he cannot restore it to the second buyer, because the latter does not appear, or consumed the thing to his own use, he is held, by his presumed will, to restore it to the owner of the thing, that equality may thus be compensated and brought about.

[For solving the present doubt a distinction must be used. Therefore

1° If the owner appears reclaiming his thing, the possessor owes it to him, even with the loss of the price; because the owner can take possession of his thing wherever he finds it. Nevertheless an action is given to the buyer against the thief ¹ .

So it is by natural law. But by Gallican, Italian and Austrian law, he who bought the thing in the public market, or from a merchant selling goods of this kind, is not held to render it to its owner, unless his price be refunded to him, which the owner can reclaim from the seller.

By English law, if the thing was bought at a fair, except in case of eviction by sentence of the judge, dominion is likewise transferred to the buyer in good faith.

By Prussian law, he who acquired the thing of another under an onerous title from a person not suspect is indeed held to render it, but he can reclaim the price from the owner, who himself likewise has an action against the prior possessor in bad faith ² .

These were validly enacted on account of the public good, for the security of commerce, and they can be observed in conscience.

2° If the owner does not reclaim his thing, it is very probable, and perhaps more probable, since the buyer can by no other way keep himself whole, that he may send the thing back to the thief, that he may recover his money: both because no one is held to preserve a thing for its owner at equal loss to himself; and because, as St. Liguori says, « Since each one has a right to the recovery of his own goods, no one is forbidden that action which per se is necessary and directly ordered to the repairing of his own loss, although indirectly and per accidens damage may befall another. » ³]