FAITH, GOOD (AND BAD). — Among the various meanings of the word faith (Latin fides) is also that of trust and its foundation (fidelity, loyalty, truthfulness). It is with this meaning in mind that one speaks of good or bad faith in the sphere of morality or law. One acts in good faith who acts with loyalty and truthfulness, without the slightest trace of deceit or fraud. Thus, good faith may be defined as a conviction of lawfulness formed in the subject, free from moral or at least legal culpability, however objectively erroneous it may be.
True good faith is theological good faith, namely, the absence of moral guilt through lack of attention to, and consent to, the true character of the moral object. The other kind of good faith, juridical good faith, is the presumption which the law makes, in certain circumstances, of the existence of theological good faith, or rather of the absence of deceit. There are many ethical and juridical relationships in regard 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 matters of possession and prescription (CIC, cann. 1309-12; Italian Civil Code, arts. 1140-70), though not in an entirely univocal sense.
The Italian Code establishes: «a possessor in good faith is one who possesses in ignorance of the fact that he is infringing another’s right. Good faith is of no avail if the ignorance is due to grave fault. Good faith is presumed» (art. 1147, paragraphs 1-3). These principles, which evidently reflect natural law, agree with canon law and morality. From the first it follows that a possessor in bad faith is one who is conscious of infringing another’s right (mere material possession of another’s property being insufficient for this purpose); from the second, that slightly culpable ignorance does not create bad faith (the same applies to a merely negative doubt); from the third, that good faith is presumed (that is, for the external forum and until proof to the contrary). It should be remembered, however, that the Italian Code, in addition to the foregoing meaning, sometimes also gives the term good faith the meaning of good will, civic propriety, or sincerity (e.g., arts. 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 good faith is consequently fundamentally required by natural law, it is not surprising that the CIC regards the latter as absolutely necessary at every moment, prescribing in the celebrated can. 1512 that no prescription can have validity unless it is supported by good faith not only at the beginning of possession, but throughout the entire duration of prescription. Indeed, from its very emergence, the force of canon law in upholding this principle was so great that all contemporary legal systems were affected by it, at least partially, including the highly developed Roman law. Whereas under the latter it was sufficient, in usucapio and longi temporis praescriptio, that the possessio be nec s’ (not furtive), nec clam (not acquired by clandestine dispossession), nec praescrio (not by precarious concession), for it to be capable of transferring ownership juridically, and only later was «bona fides» required at least at the beginning of possession (since it was held that mala fides superveniens non noces); under this influence, in later periods, good faith was required throughout the entire duration (it was said: mala fides superveniens noces). There was, it is true, a moment when an influence in the opposite direction seemed to appear. Gratian accepted in the Decretum (dictum ad c. 15, C. 16, q. 3), with regard to prescription, the Roman principle that required only initial bona fides, at the moment of the acquisition of possession. But the reaction to this deviation immediately manifested itself in the doctrine of the canonists and in conciliar legislation (c. 20, X, II, 26).
This essential aspect of good faith must therefore be clarified. According to Catholic doctrine and natural law, it is necessary that one who holds another’s property never, during the whole period required for prescription, have the consciousness that it belongs to another. It was under Innocent III that, in reaction to Gratian, the Fourth Lateran Council (1215), in can. 41, expressly stated: «it is necessary that he who prescribes never at any moment have the consciousness of possessing another’s property». And, correspondingly, rule 2 of book VI of Boniface VIII (1208) sanctioned that a possessor in good faith can never prescribe; the rule subsequently passed into the CIC, can. 1512. In any case, it is the seventh commandment, «thou shalt not steal», that prohibits retaining what is not one’s own (v. FURTO).
Consequently, civil laws that oppose the aforesaid principle concerning good faith have, and can have, no juridical value in conscience. To return to the Italian legislation, which either does not require good faith at any moment during possession, as in the case of twenty-year usucapion (cf. arts. 1158, 1160, paragraph 1, and 1161, paragraph 2, for the acquisition of immovables, universals of property, and movables not entered in public registers); or is satisfied with good faith only at the beginning (art. 1147, paragraph 3), as in ten-year usucapion (arts. 1159, 1160, paragraph 2, 1161, paragraph 1, etc.), one should in itself say that it is immoral if it intended to produce its effects also in conscience, and one would act immorally by actually conforming to it, even if protected in so doing by a court judgment. No one, therefore, may invoke these articles in his own favor in order to exempt himself from the obligation of natural law to restore whatever he possessed in bad faith, even for a very brief period, before prescription had been completed. But it may reasonably be thought (and the very nature of civil legislation, which does not directly concern itself with the internal forum, leads one to believe this) that the legislator’s intention in drafting the said article was to deny a legal action to one who had not asserted his claim for twenty or ten years without ever contesting it (even if this occurred without culpability), and to free the judge from the exceedingly difficult, indeed altogether impossible, burden of having to prove bad faith which not only does not appear externally, but cannot even be presumed a priori in one who, for that period, possessed movable or immovable property without being disturbed. In this respect and in the sense explained, it could be held morally licit, or at least tolerable, for a rule of civil law not to conform perfectly to what is dictated by natural law, which, fundamentally, it does not positively repudiate. In any event, it remains beyond dispute that, for prescription to produce its effects in conscience, internal or theological good faith is absolutely indispensable from the beginning to the end of the period required for prescription. These observations evidently apply to every legal system.
Nevertheless, it is regarded as probable that, only in the case of extinctive prescription, it is sufficient, even with regard to conscience, that one who knows of another’s right (and is therefore, in a certain sense, in bad faith) does not positively oppose that person’s asserting it: for not opposing it and remaining internally disposed to satisfy it should it be claimed constitutes a certain kind of good faith, at least negative good faith, as some moralists call it, even though the other’s right is known. Among others, A. Vermeersch (Theol. mor., II, Roma 1937, n. 371 B 2), D. Peitmer (Bannale theol. mor., II, Friburgo in Br. 1936, n. 60), and T. Iorio (Theol. mor., II, Napoli 1947, n. 584) hold this opinion. The debtor who remains silent while having contrary interests cannot be accused of grave injustice.
Finally, it should be noted that good faith ceases, giving rise to bad faith, not only by operation of law with the interruption of prescription (Italian Code, arts. 2943, paragraphs 1-4, and 2944; CIC, can. 1725, n. 4), but also whenever, for whatever reason, the person prescribing becomes aware that what he possesses belongs to another.
To conclude, although natural law and canon legislation require good faith throughout the entire period of possession necessary for prescription, civil laws that do not expressly admit this requirement cannot nevertheless be wholly condemned, since they are content with good faith only at the outset or with the mere fact of material possession: by such provisions they intend exclusively to safeguard the proper juridical functioning of society, without directly concerning themselves with conscience, which lies beyond their control; indeed, it appears probable that negative good faith, even when joined to concrete knowledge of another’s right, may at times free a person in conscience from certain obligations.
On the basis of these principles, moral theologians resolve the questions concerning the obligations of a possessor in good faith, in bad faith, and in doubtful faith through an entire casuistry that concerns the matter of restitution. But good or bad faith affects practically the whole field of what is licit and illicit, because it is a fundamental principle of moral theology that conscience (v.), which, although commanding or prohibiting something, may be true or false through no fault of its own. Invincibly erroneous conscience is a legitimate rule of human action, but only per accidens—that is, presupposing good faith, which justifies this dissonance between the subjective and objective rule of morality. The extent to which this false conviction is possible will be explained when ignorance is discussed, since that term also includes error. It is sometimes appropriate to leave undisturbed the person who acts under this false conviction (to leave him in good faith), when enlightening the intellect of one who is about to act, who has already undertaken a series of actions in that direction and is preparing to undertake others, could result in a serious disturbance of conscience because of the difficulties to be overcome or for other reasons, with the consequent danger of transforming a purely material violation of the law into a formal violation or, as moral theologians put it, material sin into formal sin.
Without offering too many examples, this is the case with illicit operations whose illicitness is difficult to understand, especially at certain moments (v. EMERITOTOMIA); and with certain illicit acts between spouses that are erroneously considered licit and are difficult to avoid in the individual case. In matrimonial matters, good faith also has a broad field of application in the so-called putative marriage, with repercussions for the legitimacy of children, convalidation and radical sanation, etc.
Extending the field to other Sacraments, even the reception of the Sacraments of the living while in a state of mortal sin, but in good faith, produces the effect of obtaining also first grace through attrition alone. Extreme Unction certainly and directly produces this effect; the other Sacraments probably do so and per accidens.
The matter is different, however, when it is no longer a question of the liceity but of the validity of acts. The omission of an essential element or of a sine qua non condition, even when made in good faith, does not cause an invalid act to become valid. This principle has immense application in the fields of law and morality. For example, in the field of the Sacraments, the conferral or administration of a Sacrament, with substantial alterations in the matter or form, renders the Sacrament null, even if this was done with the most perfect good faith. This occurs either because the objective arrangement of the elements is required by the nature of things themselves, as in the case of the matter and form of the Sacraments, or by the will of the legislator, as in the case of a specific ordinary or extraordinary form now required by the Church for marriage, or by the nature of certain laws (invalidating and incapacitating, 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 in the case of invalidating and incapacitating laws (can. 991 § 1). With regard to the validity of rescripts whose petitions contained substantial or accidental omissions, made in good or bad faith, V. RESCRITTI.
It is understood, in any case, that the proper sphere of good faith is that of the liceity, and not the validity, of acts; it belongs to the internal forum rather than the external forum.
f. in materia di prescrizione, Torino 1892; Th. Meyer, Instituciones iuris naturalis, II, Friburgo 1900, n. 577 sq.; A. Bouquillon, Theologia mor. fundam., 3ª ed., Bruges 1903, n. 333 sq.; J. Salamans, Droit et morale, ivi 1925, pp. 136, 167, 173, 206; A. Montel, Il possesso di b. f., Padova 1934; E. H. Pensaul, Bonne foi en droit civil, in Dict. de sociol., III, coll. 1374-79; A. Bride, B. f. en droit con., ibid., coll. 1379-92; R. Brouillard, B. f. en ibid., morale, ibid., coll. 1392-96; F. Cieys-Bodjaert, B. f., in DThC, II, coll. 946-67; P. Giamendi, La prescrizione estintiva nel diritto canonico, Roma 1940; L. Seavo Lombardo, Il concetto di b. f. nel diritto canonico, ivi 1944; J. Garcia-F. Bayon, La buvva fe en la prescripción, in Illustr. del clero, 10 (1946), pp. 63-65; S. Riccobono, Malafides supercesent nocet, in Apollinaria, 21 (1948), pp. 25-35; R. Sacco, La b. f. nella teoria dei fatti giuridici di diritto privato, Torino 1949. Lorenzo Simone