Faith, Good (and Bad)

FAITH, GOOD (AND BAD). - Among the various meanings of the word faith (Latin fides) there is also that of trust and of its foundation (fidelity, loyalty, truthfulness). And it is with this meaning in mind that one speaks of good or bad faith in the sphere of morals or of law. He acts in good faith who acts according to loyalty and truthfulness, without shadow of deceit or fraud. So that good faith can be defined as a conviction of lawfulness formed in the subject, free from moral or at least juridical culpability, however objectively erroneous.

True good faith is the theological one, and it is the absence of moral guilt through lack of attention and of consent to the true character of the moral object. The other good faith, the juridical one, is the presumption that the law makes, in determinate circumstances, of the existence of theological good faith, or rather of the absence of deceit. There are many ethical and juridical relationships with respect to which theological and juridical good or bad faith must be taken into consideration.

First of all, both the CIC and the Italian Civil Code speak of good and bad faith in the matter of possession and of prescription (CIC, cann. 1309-12; Cod. civ. it., artt. 1140-70), but not in a wholly univocal sense.

The Italian Code establishes: "he is a possessor in good faith who possesses in ignorance of violating another's right. Good faith does not avail if the ignorance depends on grave fault. Good faith is presumed" (art. 1147 cpvv. 1-3). These principles, which evidently reflect the natural law, agree with canon law and with morals. From the first it is deduced that he is a possessor in bad faith who has consciousness of violating another's right (the mere material possession of another's goods not sufficing for the purpose); from the second, that slightly culpable ignorance does not create bad faith (the same is to be said of a merely negative doubt); from the third, that good faith is presumed (understood for the external forum and until proof to the contrary). It is well, however, to remember that the Italian Code, besides the aforesaid sense, sometimes also attributes to the term good faith the sense of good will, civil correctness, sincerity (e.g., artt. 785, 1337, 1338, 1366, 1375, 1416, 1460, 1909, 2036, 2920).

Now, since bad faith coincides with the formal violation of another's right, and since consequently good faith is fundamentally required by natural law, it is not to be wondered at that the CIC considers the latter absolutely necessary at every moment, prescribing in the most celebrated can. 1512 that no prescription can have value unless it is corroborated by good faith not only at the beginning of possession, but for the whole duration of the prescription. So great, indeed, was in this the force of canon law, from its very rise, in upholding this principle that all coexisting legislations felt its effect, at least partially, not excluding the battle-hardened Roman law. And while for the latter it was sufficient in the usucapio and in the longi temporis praescriptio that the possessio should not be nec s' (not furtive) nor clam (not from clandestine dispossession) nor praescrio (not from precarious concession) for it to be able juridically to transfer ownership, and only later was "bona fides" required at least at the beginning of possession (inasmuch as it was held that mala fides superveniens non noces); under this influence, in later periods, good faith was required for the whole duration (it was said: mala fides superveniens noces). There was a moment, it is true, when an influence in the opposite sense seemed to occur. Gratian admitted in the Decretum (dictum ad c. 15, C. 16, q. 3), for prescription, the Roman principle that required only initial bona fides, at the moment of the taking of possession. But the reaction to this deviation manifested itself at once in the doctrine of the canonists, and in conciliar legislation (c. 20, X, II, 26).

It is necessary therefore to elucidate this essential part of good faith. According to Catholic doctrine and the natural law it is necessary that he who holds another's things should never, for the whole time required to prescribe, have the consciousness that they belong to others. It was under Innocent III that, in reaction to Gratian, the Fourth Lateran Council (1215), in can. 41, said expressly: "it is necessary that he who prescribes should at no moment have consciousness of possessing another's things." And by reflection reg. 2 of l. VI of Boniface VIII (1208) sanctioned that a possessor in bad faith can never prescribe; the norm then passed into the CIC, can. 1512. It is, moreover, the seventh commandment, "thou shalt not steal," that forbids retaining what is not one's own (v. FURTO).

Therefore the civil legislations that oppose the aforesaid principle on good faith have not, nor can they have, any juridical value in conscience. To refer to the Italian one, which either does not require good faith at any moment of possession, as when it is a question of twenty-year usucapion (cf. artt. 1158, 1160 cpv. 1, 1161 cpv. 2, for it to be formed for immovable goods alone, for the universality of goods, and for movable goods not entered in public registers); or is content with a merely initial good faith (artt. 1147 cpv. 3), as in ten-year usucapion (artt. 1159, 1160 cpv. 2, 1161 cpv. 1 etc.), in itself it should be said that it is immoral, if it intended to produce its effects also in conscience, and he would act immorally who conformed to it in fact even if guaranteed in this by a judgment of a tribunal. No one therefore can adduce the said articles in his own favor to exempt himself from the obligation of natural law to restore whatever he possessed in bad faith, even for a very brief time, before the prescription had been completed. But it is rightly thinkable (and the very nature of civil legislation, which does not directly concern itself with the internal forum, induces one to believe it), that the intention of the legislator in drafting the said article was that of denying a juridical action to one who did not possess his own for twenty or ten years without ever having contested it (even if this occurred inculpably), and of freeing the judge from the most difficult burden, not to say altogether impossible, of having to prove a bad faith that not only does not appear externally, but cannot even be presumed a priori in one who for the said duration possessed movable or immovable goods without being molested. Under this aspect and in the sense explained, it could be held morally licit or at least tolerable that a norm of civil law should not perfectly conform to what is dictated by the natural law which at bottom it does not positively disavow. In any case it remains beyond discussion that it is absolutely indispensable, for prescription to produce its effects in conscience, that there be internal or theological good faith from the beginning to the end of the time required to prescribe. Which observations evidently hold for any legislation.

Nevertheless it is held as probable that, in the sole case of liberative prescription, it is sufficient, also as regards conscience, that he who knows of another's right (and who therefore in a certain sense is in bad faith) should not positively oppose the latter's asserting it: inasmuch as not opposing it and remaining internally disposed to satisfy it should it be reclaimed constitutes a certain kind of good faith, at least negative, as some moralists call it, even if the other's right is known. Of this opinion are, among others, A. Vermeersch (Theol. mor., II, Rome 1937, n. 371 B 2), D. Peitmer (Bannale theol. mor., II, Freiburg im Br. 1936, n. 60), T. Iorio (Theol. mor., II, Naples 1947, n. 584). The debtor who does not speak, having contrary interests, cannot be accused of grave injustice.

It should be noted finally that good faith ceases, giving place to bad faith, not only by provision of law with the interruption of prescription (Cod. it., artt. 2943 cpvv. 1-4 to 2944; CIC, can. 1725, n. 4), but also whenever, for any reason, he who prescribes comes to know that what he possesses belongs to others.

To conclude, although by natural law and by canonical legislation good faith is required for the entire duration of the possession necessary for prescription, nevertheless the civil laws that do not expressly admit this cannot be entirely condemned, contenting themselves with only initial good faith or with the mere fact of material possession: by such norms they intend to safeguard exclusively the sound functioning of the law, without directly concerning themselves with conscience, which escapes their control; indeed it appears probable that negative good faith, even though joined to concrete knowledge of another's right, can sometimes also free one in conscience from certain obligations.

On the basis of these principles moralists resolve the questions concerning the obligations of the possessor in good faith, in bad faith, and in doubtful faith, with a whole casuistry that covers the field of restitution. But good or bad faith pervades somewhat the entire field of the licit and the illicit, because it is a fundamental principle of moral theology that it is never permitted to act against conscience (v.), which, however, in commanding or forbidding something, can be true or false without its own fault. An invincibly erroneous conscience is a legitimate rule of human action, but only per accidens, that is, assuming good faith, which justifies this dissonance between the subjective and objective rule of morality. How far this false persuasion is possible will be discussed when ignorance is treated, understanding under this term error as well. It is at times appropriate to leave undisturbed the one who acts in this false persuasion (to leave in good faith), when from the enlightenment of the intellect of the one who is about to act and who has performed a series of actions in that sense and is preparing to perform others, a strong disturbance of conscience could result, because of the difficulties to be overcome or otherwise, with the consequent danger of transforming a purely material violation of the law into a formal violation, or, as moralists say, material sin into formal sin.

Without descending to too many examples, this is the case of illicit operations whose illicit character is difficult to understand, especially at certain moments (v. EMERITOTOMIA); of certain illicit acts between spouses, but erroneously held to be licit and difficult to avoid in the individual case. In matrimonial matters good faith has, moreover, a broad field of application in so-called putative marriage, with repercussions on the legitimacy of children, on convalidation and radical sanatio, etc.

Extending the field to other Sacraments, even the reception of the Sacraments of the living in a state of mortal sin, but in good faith, produces the effect of obtaining even the first grace with attrition alone. Extreme Unction produces this effect certainly and directly; the other Sacraments probably and per accidens.

But the matter is different when what is at issue is no longer the licitness but the validity of acts. The omission of an essential element or of a condition sine qua non, even if done in good faith, does not cause an act to become valid when it is invalid. This principle has an immense application in the field of law and morals. For example, in the field of the Sacraments, the confection or administration of a Sacrament, with substantial variations in matter or form, renders the Sacrament null, even if this was done with the most perfect good faith. This happens either because the objective positing of the elements is required by the very nature of things, as is the case with the matter and form of the Sacraments, or by the will of the legislator, as is the case with a determined ordinary or extraordinary form now required by the Church for marriage, or by the nature of certain laws (irritant and disabling, at least as a general principle, can. 16 § 1). At times, however, the legislator shows understanding toward one who acts in good faith and recognizes certain effects even for irritant and disabling laws (can. 991 § 1). As regards the validity of rescripts whose petition contained substantial or accidental omissions, made in good or bad faith, v. RESCRIPTS.

It is understood in any case that the proper field of good faith is that of the licitness and not of the validity of acts, it is the internal forum rather than the external forum.

Lorenzo Simone