3. 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 mains 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]
- ↑ Bucceroni, i, n. 1354.
