Palladium theologicum, Tomus quintus: De virtutibus

These Contracts, among others, are the more celebrated, since nearly the whole commerce of human society subsists on them; they are nonetheless most perilous, both on account of the defects that very often lie hidden in the thing sold unknown to the buyer; and on account of the avarice of merchants, which, cloaked under this specious pretext, sells their wares through fair means and foul, and heaps up for itself the Denarii of the poor, by selling worse goods to them at a dearer price; these things are chiefly practiced in places where there is no tax on price; but everyone is permitted with impunity to exchange his goods either according to the buyer's necessity, or according to his own pleasure.

VERY MANY definitions of these are handed down, from which is drawn the very brief definition which the S. Doctor indicates in the Speculum animae, cap. 2. Venditio est passio mercedis pro pretio, Emptio vero Passio pretii pro mercede, Caspensis uses it Tract. 19. disp. 4. and others apud Fagundez lib. 5. de contract. cap. 1. Bassaeum, verb. Emptio.

NOTE here that the name merx properly signifies only movable things that are sellable lib. 66. ff. de verb. signific. But here merces is taken for merces in the sense of price, insofar as it has the rational character of the object to be priced. It is so taken by Lessius Tom. 1. lib. 2. cap. 11. dub. 1. with the Jurists on leg. 1. ff. de contract. emptionis, et venditionis, and Molina Tom. 2. de iust. tra. 2. disp. 336. who so define it. Therefore it is taken here as signifying the payment, not the merchandise. In this Fagundez is deceived, along with Bassaeus.

It is called Passio, because it is a mutual contract, and this stands in the place of the genitive. It is called mercedis pro pretio, et pretii pro mercede, because of old, before money was invented, there were only exchanges of a horse for an ox; of wine for oil; and of wheat for cloth; but afterwards money was invented on account of the inequality of things, which at the beginning was stamped with the foot of cattle; whence also it was called pecunia, as Pliny testifies lib. 33. cap. 3. and among the Romans it was impressed with the foot of an ox. Hence that proverb of Martius: Bovem habet in lingua, that is, he has been corrupted by money. Hence also Depeculatores were called those who take away moneys by violence, theft, etc. Soon, however, on account of inequality, money was stamped with various metals, at whose price Purchases and Sales began to be made by the law of nations, although as regards the equality of price they are made by the law of nature. On these see Fabianum de monte de empt. et vendit. quaest. 1. Molinam Tom. 2. tract. 2. disp. 336. Fagundez in Prooemio ad lib. 5. de Emptione, etc.

On this (as the S. Doctor says above) perilous matter I shall treat of some things, as being necessary, although very few are found in the Seraphic Doctor.

THREE things, however, are gathered as necessary to Emptionem, et Venditionem, namely Consent, the Thing, and the Price. Concerning Consent it is clear ex Leg. omnibus, ff. de verb. oblig. Concerning the thing it is established ex lege, Nec emptio, ff. de contrahend. empt. Concerning the price it is established ex dicta lege, and the Doctors commonly teach it.

It is PROVED, because this contract is obligatory in both directions; but there is no obligation without consent.

NOTE, however, that the simple contract of Emptionis, et Venditionis entered into with the agreement of forming a written instrument is not perfect unless the writing is made; and any of the contracting parties can withdraw, because under that agreement and condition the contract was entered into, and therefore it is not held to be perfect unless purified, with the condition fulfilled. So the Doctors note on leg. 2. ff. de contract. empt. et leg. contractus, Cod. de fide instrument. et Instit. de empt. et vendit. §. 1. See Molinam tom. 2. de Iustitia, tract. 2. disp. 337. Fagundez lib. 5. cap. 2.

But if mention of the writing has been made, the contract being already perfect, the writing is not necessary. Yet one of the contracting parties can compel the other that the writing be made for the easier proof of the contract, because what does not harm himself and benefits the other, each of the contracting parties is bound to effect. Now the instrument must be paid for by the one who compels the other in this case. See Molinam above with Fagundez.

IF, however, at the beginning of the contract there was agreement about making a writing, it is doubted whether they agreed to this for the greater firmness of the writing and its easier proof; or for the validity of the contract.

COMMONLY they respond that it must be held sufficient for the validity of the contract; others, however, say the opposite.

MOST certainly those who do not have the dominion and administration of things cannot perform these, as minors, wards (pupilli), the insane, sons of a family, and others, whom the S. Doctor relates as enumerated in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. et disp. de contractibus in genere.

LUCRATIVE trading is illicit for Clerics and Religious, cap. consequens, where suspension is introduced, dist. 88. et cap. fornicati, eodem titulo, et cap. negotiatorum, ibidem, et cap. ultimo, de vita, et honestate cleric. Clement. V. eodem titulo, et cap. 1. Ne clerici, vel monachi. So most commonly the Doctors, and in eo cap. excommunication ferendae sententiae is imposed. Similarly the leasing of lands for the sake of gain and avarice is forbidden, cap. pervenit, dist. 86. where it is permitted only for sustenance.

It is understood, however, of Clerics only in sacred orders. See Molinam Tom. 2. disp. 342.

JUDGES also, and others representing the Prince, are prohibited from buying and selling in the lands governed by themselves; see Molinam disp. 343.

GUARDIANS, however, by the common law are bound, if wishing to buy the goods of their wards, to have a decree of the judge openly, and with the contract entered into in good faith. So Gama decis. 217. It is proved by leg. si in Emptione, §. finali, verbo tutor, ff. de contrah. empt.; provided it is done openly and in good faith, for those buying secretly through a friend are presumed to act in fraud. See Molinam Tom. 1. disp. 224.

SPOUSES also can have such contracts with each other, and a son with his father concerning things that are his own. Concerning spouses it is had in text. in leg. Aurelius, §. finali, ff. de liber. legat. Concerning Father and son as regards Castrensian and quasi-Castrensian goods it is certain; for these belong entirely to the son.

The FATHER, however, cannot sell any of his goods to one son without the consent of the other sons; nor to one grandson without the consent of the other grandsons, or without the license of the King or Prince, when the latter cannot, or will not, give such consent; otherwise such contracts are void, and the purchasing son in punishment loses the price of those things, leg. 2. ff. de contrah. empt. See Molinam tract. 2. disp. 343. alias 245. And say the same of sons selling their things to their parents, by the rule of correlatives, as Fagundez notes lib. 5. cap. 15. num. 4. Rebell. de oblig. iustit. part. 2. lib. 9. quaest. finali, sect. 3. num. 17.; for the same reason holds in the ascendents.

HENCE Fagundez deduces num. 12. that a Father cannot contract a loan with his son, nor a father with the son of a prior marriage, while others exist from the second.

SIMILARLY, if a father gives a field to this son for the payment of some money which he owed, it will be invalid, because it takes the place of a sale.

I SAY first, that a free man cannot be sold. Therefore if he is sold in bad faith as a slave, the seller is bound to the buyer for the price, and for all profit ceasing and loss accruing, and the sale is void of itself. If, however, he sold in good faith, thinking him to be a slave, the sale is void; yet he is not bound for the damages. See Molina tract. 2. de Iust. disp. 340. Lessius lib. 2. cap. 14. dub. 13. num. 19. Tannerus disp. 4. quaest. 7. num. 55.

HERE a doubt arises: Whether he to whom you have given your thing to sell can retain something of the price; as if you give him a horse, saying: sell it for at least forty gold pieces, and he sells it for forty-two, can he keep those two gold pieces; or if I have given a garment saying, if they give you ten gold pieces, give it; and he received twelve.

I SAY that he is bound to give the whole to the seller, because he acquires no right in the price, neither by reason of the thing sold, which is another's, nor by reason of the labor, which I suppose is not esteemed so much, even though it be agreed that a reward for his labor be paid.

IT IS ALSO DOUBTED: whether anyone can buy a chirograph containing a credit for a lesser price than the writing attests, on account of the anticipated payment; as if I hold a chirograph for a credit of one hundred gold pieces against John at S. Martin's: whether Peter can now anticipate in the month of June and buy the chirograph for ninety-five gold pieces.

I SAY first that it is usurious, on account of the deferral alone, apart from a cause of profit ceasing or loss accruing, to buy such credits for less. So the Doctors commonly hold, with D. Bonavent. in speculo animae, cap. 2. §. the second branch of the principal vice of avarice, etc.

I SAY second: if the chirograph contains a credit that is difficult and liable to litigation, you may buy the credit for less on account of these difficulties, in the judgment of a prudent man. Also by reason of profit ceasing, or loss accruing, you may buy these credits at a lesser price. So Valentia quaest. 20. puncto 2. §. concl. 5. Lessius lib. 2. c. 21. dub. 18. num. 65. Navar. cap. 17. num. 231. Tanner. dub. 4. quaest. 7. num. 46. Medina Cod. de restit. quaest. 38. D. Antonin. 2. tit. 1. cap. 8. §. 3. and 4. Molina disp. 361.

THE REASON is, because those difficulties diminish the price of the credit, and the labors spent in overcoming those difficulties demand a price. The same reason holds for profit ceasing.

THE WHOLE difficulty is, what is to be done when none of these applies.

THE FIRST opinion grants that they may be bought for less for these reasons. First, because such chirographs are esteemed by the judgment of prudent men at less than the value of present money; but the just price is that which is judged by the judgment of prudent men, as Couar. lib. 2. var. cap. 3. teaches, and others cited in Fagundez lib. 5. cap. 16. num. 11. and Tannerus above. Bellarmine is cited among them.

FURTHER, because he who buys those chirographs buys a right to recover the money they contain, leg. minus, ff. de regulis iuris. This right, throughout the whole time it is not paid, is useless and sterile to the buyer.

THIRDLY, otherwise the purchases of personal rents would be iniquitous, which are received in many places. Others subscribe with Diana part. 1. tract. 8. resol. 49.

THE SECOND opinion wholly denies that in that case credits can be bought for less. So Medina Cod. de restitut. quaest. 38. Sotos lib. 6. de Iust. quaest. 4. art. 3. ad 3. Sylvester V. usura, 2. quaest. 14. Gabriel. 4. dist. 15. q. 11. dub. 14. Lessius lib. 2. cap. 21. dub. 8. num. 21. Rebell. 2. part. de oblig. iust. lib. 5. quaest. 13. Angelus V. usura 1. num. 63. Molina Tom. 2. disp. 361. Fagundez lib. 5. cap. 16. num. 13. Tanner. loco cit. Valentia supra, Sot. lib. 6. quaest. 4. art. 1. Bassaeus, V. emptio, num. 18. though he does not refuse the opposite.

THE REASON is, because there is no foundation for this gain, and it opens the way to disguised usuries; for that right does not bring, as is supposed, any loss in that deferral of the real acquisition of the thing.

AS FOR the works to which we are bound by justice, I have already shown in the disp. de Iudice that they cannot be sold. See Molina Tom. 1. disp. 89. and Lessius lib. 2. cap. 14. dubio 8.

SIMILARLY, the works to which we are bound by vow are unsellable, because by these the one vowing is bound toward God by a kind of justice.

SAY the same of the works owed to a Prince, or Prelate, by virtue of obedience. They can, however, receive stipends for their sustenance, as D. Bonavent. notes, ad 3. Lucae on the words: Contenti estote stipendiis vestris.

SIMILARLY, neither can they receive payment for works commanded by the Church. See Molina disp. 91.

AS FOR prostitutes, although they receive a price validly and justly, and without obligation of restitution, it is indeed a payment for labor, yet they do not receive it licitly. Wherefore it is a sin, not against justice, but against the sixth precept, not to commit fornication, as D. Bonav. notes, in 4. dist. 15. p. 2. art. 2. quaest. 1. ad 4. Fagundez l. 5. cap. 18. num. 21.

AS FOR works of mercy outside the appointed time, when we are compelled by precept, such as teaching even Theology, serving the infirm, etc., they can be sold; for not all things spiritual are invisible, but those which are from the Holy Spirit. These, to be sure, are sold simoniacally.

AS FOR sacred things, they cannot be sold. See Fagundez l. 5. cap. 19. but we treat of this below, Tract. de votis, disput. 12. quaest. 3. They can, however, be sold by reason of the material, as Tanner. num. 55. Azor. T. 3. l. 8. cap. 5. quaestio 1. notes, according to the C. Ligna, de consecrat. dist. 1. can. Aurum, and can. Apostolicos, and can. Sacrorum, 12. quaest. 2. on which matter I spoke briefly, tom. 4. disp. 17. quaest. 10. ad proposit. 22.

AS FOR entering Religion, although to receive something for entering religion on account of a price is simoniacal, nevertheless a price for food and clothing can be received. See Less. l. 2. cap. 35. dub. 12. num. 71. Suarez T. 1. de relig. l. 4. cap. 17. with D. Thom. in 4. dist. 25. quaest. 3. art. 3. quaest. 1.

THE REASON is, because what is sold is the temporal, not the spiritual, nor is there any decree forbidding it. If, however, the monastery is wealthy, then the interpreters of law commonly cry out that it is simony; and it is gathered from the chapter Tua nos, de simonia; and the C. veniens ad nos, and the chapter dilectus 2. of the same title.

There REMAINS labor in spiritual works. Many distinguish labor as intrinsic and extrinsic. The intrinsic is that which is morally included in the sacred action, as the labor of a priest in singing Mass, of a preacher in preaching. The other is extrinsic labor, for instance in going to a remote place to preach or celebrate. So Fagundez l. 5. de contract. cap. 21.

D. BONAVENT. in speculo animae, cap. 2. says that to sell something spiritually annexed is simony. But it is lawful to receive, or give, for labor and sustenance according to good customs.

The spiritual ANNEX making it simoniacal the holy Doctor seems to understand as that which is itself also spiritual, as appears in 4. dist. 25. dub. 5. litt. or something intrinsically joined, as the sacrament of order joined to it, which is the very consecration intrinsically joined to the spiritual, or when a prebend is sold, or if the spiritual annexed to the spiritual is sold; as preaching. So p. 1. Censit. sect. 30.

WHEREFORE he does not seem to understand labor in the way those cited above understand it, such that to sell the labor I expend per se in singing Mass, or preaching, would be simony; but I judge that labor is unsellable which is spent on devotion, attention, or intention; but the labor which I expend per se, not only in undertaking a long journey, but in standing in the church, singing, and crying out, I judge to be priceable; and in this sense (as I believe) D. Thom. spoke in 4. dist. 25. quaest. 4. art. 2. Durand. there, quaest. 3. Sylvester v. Simonia, quaest. 9. Malder. de simonia, tract. 9. cap. 3. dub. 6. Filliuc. cap. 1. quaest. 11. Reginald. l. 23. disp. 228. Sotus l. 9. quaest. 6. art. 1. Less. T. 1. l. 2. cap. 35. dub. 8. Suarez T. 1. de Relig. l. 4. de simonia, cap. 21. num. 10.

Others, however, assert it more clearly, whom Malderus cites loc. cit. and Bonacina de simonia, quaest. 6. p. 5. saying that the labor per se enjoined on a spiritual work can licitly be priced, and for the greater labor a greater price demanded, for instance, if the priest is fatter, or the preacher feeble. Nay, Valentia says something more, disp. 6 quaest. 16. p. 1. citing Gabriel, Caietan, Soto, and others; and Tanner. 2. 2. dist. 5. quaest. 8. dub. 3. num. 76. and Suarez loc. cit. num. 17. with whom Diana adheres, p. 1. tract. 16. resol. 29. Bassaeus v. Emptio, num. 5. warning that the price of a thing cannot be increased on account of the spiritual annexed, for instance of a chalice, etc. or of a field on account of the right of patronage, though he does not wholly refuse the opposite.

But if payment may be received only for the extrinsic, per accidens occurring labor, as Fagundez says n. 3., such as a long journey to Mass, or fasting for many hours; alas, how many simoniacs shall we stuff into that class? D. Bonav. teaches, ad cap 2. Ioan. that Christ cast out those selling oxen, that is, those who sell the labor of preaching for a temporal price.

AS FOR secular offices: whether they can be sold, many indeed deny; because such offices are the object of distributive justice, and are to be conferred on the worthier. So Medina C. de restit. quaest. 4. de usuris, Adrian. in 4. quaest. de usura Torrianus 2. 2. T. 2. disp. 23. dub. 2. num. 5. and to this end the sole law contributes, Cod. ad Legem Iuliam de ambitu, which forbids anyone to be promoted to public office for a price and by ambition.

Castaneus smiles upon this, p. 1. Catal. gloriae mundi, consider. 60. elsewhere fol. 38. The Gloss on the C. sicut 1. quaest. 6. Bouët. decis. 149. Caietan. in offi.. Avendan. resp. 9. col. 2. Fagundez l. 5. cap. 13.

Others, however, allege that Princes can sell those offices, provided they dispense them moderately, and to worthy men, and for the utility of the Republic, so that some great sum may be raised which would otherwise not be had. So teach Less. l. 1. cap. 32. dub. 4. num. 29. Aragon. 2. 2. quaest. 63. art. 2. Villalobos T. 1. tract. 8. difficult. 7. Ioan. de Cruz in directorio, p. 2. punct. 7. quaest. 7. art. 2. dub. 10. con. l. 3. Ledefma in summa, T. 2. tract. 7. cap. 1. concl. 15. Salon. 2. 2. T. 1. quaest. 63. art. 2. controu. 8. Ibidem Sylvius, Tanner. diff. 5. quaest. 7. p. 2. §. 5. ad 3. Malderus 2. 2. tract. 9. cap. 1. Bassaeus num. 8. dub. 5. Rebell. l. 9. quaest. 18. sect. 2. num. 24. and others in Diana tract. 5. Miscell. resol. 108. he adds Azorius T. 3. l. 8. cap. 7. quaest. 3. Filliuc. t. 1. tract. 24. p. 2. cap. 2. Corduba summa quaest. 117. Fagundez adds l. 5. cap. 23. Valentiam disp. 5. quaest. 7. p. 2. §. 5. ad 3.

D. Thom. also grants it licit in his reply to the Duchess of Brabant, opusculo 21. Sylvester, v. dignitas, num. 4. Baldus l. Barbarius, lectura 1. num. 6. ff. de offic. Praetoris, Vallascus in praxi de partitionibus, cap. 13. num. 67.

D. Thom. APPENDS, however, certain inconveniences, on account of which he does not readily adopt this.

AS FOR S. Bonav., I judge him to be for the second opinion; for in speculo animae, cap. 2., toward the end, §. Item, ut dictum est, to prove simony illicit, he argues, because we are not lords of spiritual things; but concerning temporal dignities he does not say in that entire division of sins that their sale is illicit; nay, he seems to infer that it is licit from the opposite reason adduced, and because there, where he sets forth all the species of sins as in a mirror to the soul itself, he deliberately omits this sale.

FURTHER, he seems to be of this opinion also in 3. dist. 40. dub. 2. litt. at the words: Non concupisces domum proximi tui, where he puts forward this argument: What Peter may acquire, he may desire: and answers that it is licit to desire moderately what is licit to buy, and at once adds concerning honors and dignities, insofar as they are useful temporally, whose pursuit belongs to avarice, he says, they may be moderately desired; and he infers that they may also be bought.

THE BEST reason is that included in D. Bonav., while he supposes these things buyable by public and ancient custom. For thus Princes and Kings sell offices, having even jurisdictions annexed, and indeed usefully, not only for the treasury, but also for the peoples: these, fearing to lose those dignities which they had bought at such a price, are held the more to their duty. It is confirmed because, as S. Bonav. tacitly indicates in that Opuscle in which he sets forth all sins to a nicety, and adduces the laws, he professes to find no law against this. I do not indeed judge that all Princes are destitute of counsel, or of counselors; but I hold as most certain that they act on these matters most prudently with the counsels of wise Theologians, especially because even the most holy Princes exercised these things in practice with the same upright men. Nor do these things harm distributive justice, for they can be sold to the better men.

By the counsel indeed of Justinian's wife a law was made that henceforth the offices of the judiciary should not be sold in amb. So that judges be made without any suffrages, as Cassanaeus, cited above, relates. And S. Louis, King of France, ordained the same, as Gaguinus relates, l. 6. cap. 2. And Pius V. by his motu proprio Etsi Romani, and Sixtus V. Cum pro suprema, forbid the procurement and assertion of any dignities having that right for a middling price, under penalties of confiscation of goods, etc. See Diana p. 3. tract. 5. resol. 108. Miscellan.

I CONFESS the matter is ill done, since what should be done by virtue is treated with money, as Cicero says, whom Baldus cites in the Leg. Barbarius.

I say, these things were said with the best zeal, lest justice be sold, Leg. Quisquis, C. si certum patet; they enacted this cautiously as regards the power of judging, on account of the great peril of avarice; for those who buy praetorian offices so dearly wish to stuff the crimes of their subjects into them, as I have often seen in the praetorships of rhetors, where all offices are for sale. Yet if this is done cautiously and prudently, the dangers will be removed.

A QUESTION, namely, concerning those who hold such offices with the power of transferring them to another, for instance to a kinsman or friend; whether they can also sell it.

THE Doctors COMMONLY affirm it. So Corduba, quaest. 117. Ioan. de la Cruz in doct. p. 1. praecept. 7. quaest. 7. art. 2. dub. 10 and others with Diana Tract. 5. Miscell. resol. 109. and Fagundez de contract. l. 5. cap. 23. num. 21. The reason is, because that liberty tacitly includes also the power of selling, since the manner of transferring is not limited. Bassaeus num. 8. accedes to these.

Many ADD, with Diana, that he can reserve to himself some pension in transferring such an office; but Fagundez, struck with fear, does not smile upon this.

Things are SELLABLE even in hope, as the offspring of handmaids, of cattle, the cast of fisheries, hunts, and fowling: for these can be given in pledge, L. et quae nondum sunt, ff. de pignoribus: therefore also sold. Yet among these some are sold conditionally, as the fruits of a field, the offspring of a handmaid, namely if they be born; others absolutely, as the cast of a fishery, etc. So Molina T. 2. disp. 340. Gomez t. 2. variar. cap. 2. Fagundez cap. 24. Libri 5. man. 6.

Poisons are also SELLABLE, which can serve for colors or other uses of pure mixture, but not the rest. See Molina disp. 340.

All goods present and future are also SELLABLE. So Molina loc. cit. Fagundez lib. 5. cap. 25.

AS FOR things belonging to another, I suppose, with D. Bonav. in speculo animae, cap. 2. and in 4. dist. 15. p. 1. art. 2. quaest. 1. that one can be a possessor of another's thing, which he sells, in two ways. First in good faith; second in bad faith. The possessor in good faith is he who thinks the thing to be his; in bad faith, he who knows it to be another's. See Panormitanum in the cap. gravis, de resti. spoliatorum, and it appears from the cap. si virgo, 24. quaest. 1. in se. unam parte decreti. I have said enough of these, when treating of restitution and the rest.

It is CERTAIN, therefore, that a possessor in bad faith cannot sell. The reason of D. Bonaventure, which all use, is, because by a sale dominion ought to be transferred from the seller to another: but such a possessor has no dominion of the thing; nay, he is in continuous delay of the obligation of restitution, even of the fruits.

A possessor in good faith CAN also sell the thing, as long as he prudently thinks it his own: but as soon as he has recognized the thing to be another's, he is bound to restore it to its lord, as I said concerning restitution.

It SOMETIMES happens that, by reason of place or time, a sale is illicit; as to bring things for sale to a church or a sacred place, that they may be sold there, is a mortal sin. So D. Thom. prima Corinth. 2. on the words: Numquid domos non habetis ad manducandum, et bibendum? And he alleges the deed of Christ cap. 2. Ioan. when he cast out all who were selling.

By the same argument it is proved by D. Bonavent. ad cap. 2. Ioan. and he confirms it by the authority of D. Chrysostom homil. 22. in Matt. and l. 2. de civitate, cap. 20. from which the holy Doctor deduces that it was a grave fault, that is, a grave irreverence. The same teach Molina t. 1. de iustitia, disp. 44. Sylvest. v. immunitas, Panorm in cap. cum Ecclesia, de immunit. and the Council of Trent smiles upon it, Sess. 22. in the decree on what is to be observed and avoided in the celebration of Mass.

FURTHERMORE, in perjuries, lies, and other vices which arise not from the sale itself, but from the wickedness of the sellers and buyers, the sale is rendered entangling and sinful, as all confess with D. Bonav. in speculo animae, cap. 2. Nay, if a lie and perjury are committed to deceive the buyer, that he may buy beyond and above the just price, it is mortal against justice, and the seller is bound to restitution under mortal sin, if the buyer for that reason buys beyond the rigorous price, and if the excess is grave; but it will be venial if he slightly exceeds the just price, as D. Bonav. teaches loc. cit. Molina T. 2. disp. 346. Fagundez l. 5. cap. 27.

There are, however, certain things having no determined price, as exotic things from the new world, about which it is asked: whether their lords can sell them for whatever they wish.

It seems to me MORE PROBABLE that some price is to be held, to be set by the judgment of a prudent man, reckoning what must be reckoned. So Navar. sum. l. 23. num. 78. Less. l. 2. cap. 21. dub. 3. Caiet. 2. 2. quaest. 77. art. 1. Caspens. Tract. 19. disp. 4. sect. 2. and others commonly, in Fagundez l. 5. de contract. cap. 28. Although some, in him and in Diana p. 1. Tract. 8. resol. 36. hold the opposite; whom Bassaeus also cites num. 8. thinking with us.

THE REASON is, because things for sale are not to be determined by the seller alone; otherwise most grave inconveniences would arise; nor are these of better condition than other things; nay, since they are not necessary, they ought not to plunder the peoples.

Things also NECESSARY for life ought to be sold in great necessities, and men can be compelled for the public good; and to hide such things is a most grave sin, if otherwise their price rises, or the poor suffer gravely. So D. Bonavent. in speculo animae, cap. 2. at the end. He proves it from that Lucae 12. of the man who had indeed gathered many goods, to whom the sentence of death and damnation was pronounced: Stulte, hac nocte animam tuam repetent a te. He proves the same ad 12. Lucae. And this also concerning cloth and other necessaries teach Barthol. l. 1. C. de Episcopali audient. Tabiena v. emptio, num. 6. Couar. l. 3. var. cap. 14. binding others Panormit. and alii in cap. 1. de empt. et vendit. and l. 2. ff. de nundinis, and l. 1. Cod. ne nemini liceat in empt. Matth. de Afflictis quaest. 3. in prooem. constit. Neapol. Felinus in cap. 1. de Iudaeis. Therefore a Judge, in time of charity or famine, can fix the price and impose penalties on victuals, as Molina T. 2. de Iustitia, disp. 341. Syluest. v. emptio, quaest. 4. Couar. l. 3. var. cap. 14. Gomez t. 2. var. cap. 2. teach, and it is clear from l. 1. §. cura carnis, ff. de offici. Praetoris urbis.

FINALLY I add, that it is licit to buy things so that the same, when altered, may be sold dearer, for the sake of gain, and this toward the good end of supporting a family, etc. So D. Bonau. loco citato whom Molina T. 2. disp. 239. Less. l. 2. cap. 21. dub. 1. D. Thom. 2. 2. quaest. 77. art. 4. Sotus de Iustitia, l. 6. quaest. 2. art. 1. Benuenutus tract. de mercatura, cap. 1. num. 28. Cuniaph. 1. decret. ord. C. Fornicari disp. 88. follow, where it is proved also from D. Augustino.

Nor does D. Chrysost. cited in that C. stand in the way, where he says, a merchant cannot please God. For he speaks of those who place their ultimate end in trade, being ready to offend God mortally.

SALES, and purchases are just or unjust chiefly by reason of the price.

NOW the just price is twofold. One is fixed by public law, as when a pound of flesh, a jar of oil, or a measure of wine is sold for so much. This price consists in an indivisible sum, and is called by Aristotle, first Ethics, chapter 7, the legal price, which the Doctors commonly follow. The other is the natural price, which is imposed by nature itself according to prudent estimation. That this is just appears from the law pretium, ff. ad Legem Falcidiam. This price, however, does not consist in an indivisible sum, because it depends on many circumstances, on which see Nauar. cap. 23. num. 79. Medina C. de restis. quaest. 31. Couar. l. 2. var. cap. 3. In it, therefore, there is a certain latitude, within which justice is not violated, as D. Bonau. in speculo animae, cap. 2. Molina T. 2. disp. 347. Less. l. 1. cap. 21. dub. 2. num. 8. Fagundez l 5. de contract. cap. 29. Caspens. Tract. 19. sect. 2. Tanner. disp. 4. quaest. 7. num. 27. teaches.

HENCE the natural price is threefold. The highest, or rigorous; the middle, or moderate; and the lowest, or charitable. For example, let the middle price be one hundred; the rigorous will be 105; the lowest will be 95. Again, let the middle be 10; the lowest 8; the highest 12. Such examples are given by Couar. l. 2. var. cap. 3. Lessius, and Molina above, Caspensis num. 7. who, however, computing the accrescence in the hundred, holds that in tens it is increased only by five, and decreased only by one and a half.

WITHIN the limits of these three prices there cannot be injustice, so that a thing may be sold dearer on credit than for cash in hand, provided one keeps within these bounds. So it is gathered from D. Thom. 2. 2. quaest. 77. art. 1. Caietano there, Molina t. 1. disp. 347. Less. l. 2. cap. 21. dub. 2. num. 11. Soto l. 6. de iust. quaest. 2. art. 3. Couar. l. 2. var. cap. 3. Scoto in 4. dist. 15. quaest. 2. Maiore quaest. 29. and 40. Conrado de contract. cap. 3. quaest. 56. Nauar. in C. qualitas, de poenis. disp. 5. num. 43. Fagundez l. 5. cap. 29. Casp. num. 7. who, however, with others notes that the price must be determinate. Wherefore, if you sell on this condition: I sell for whatever you wish, it is invalid.

FROM many circumstances the Doctors teach that the natural price of things can change.

THE FIRST is from the abundance of money, of goods, and of buyers; for just as by the scarcity of buyers and the abundance of goods merchandise becomes cheap, so on the contrary, etc. Hence also at the end of market days the price of goods falls. So Sotus l. 6. de iustitia quaest. 2. art. 3. Rebell. 2. p. de oblig. iust. l. 9. quaest. 1. sect. 1. num. 34.. Couar. l. 2. var. cap. 3. num. 4. Caiet. 2. 2. quaest. 77. art. 1. Tannet. disp. 4. quaest. 7. num. 28. Fagundez l. 5. de contract. cap. 30. and he indicates the S. Doctor does in speculo animae, cap. 2.

SECOND, from the abundance of money: There are some regions in which gold and silver abound, as the Indies and almost the whole New World, where more gold and silver can be poured out. Add that this also often happens from the difficult transport of goods. So Fagundez num. 30.

THIRD, the manner of selling is a cause; things are sold dearer piecemeal, as Bass. num. 5. Rebell. num. 36. Syluester v. emptio, quaest. 20. Molina T. 2. disp. 348. Fagundez num. 4. notes. To this are reduced sales sub hasta, or by brokers, or when students leave at the end of term. So Nauar. in Manuali, cap. 23. num. 78. Caiet. and Soto above. Tannerus num. 19.

THE Doctors ask, then, what is the just price for a sale sub hasta.

COMMONLY they answer that it is that which does not exceed half the just price, nor is lowered below half. So Gregorius Lopes de contract. l. 1. cap. 19. Filliuc. t. 2. tract. 35. cap. 6. num. 141. Mercado l. 2. cap. 12. Garcia l. 1. cap. 21. Corduba quaest. 8. Rodriguez tom. 1. cap. 174. Ioan. Franc. Suarez l. 1. under the word venditio, et emptio, §. 14.

SOME, however, say it is that which is last offered, if frauds are absent. So Iacobus Gordon. T. 1. Theolog. Mor. l. 4. quaest. 5. cap. 8. num. 98. Villalobos t. 2. cap. 21. diffic. 5. and he cites others, Fagundez l. 5. de contract. cap. 30. num. 6. Others say that worthless goods lose a third of their value. So Caietanus, but it does not please Tannero num. 29.

FOURTH, the price is increased by the appetite and desire for novelties, in the fruits of the earth, the fish of the sea, and certain curiosities: Thus the Ethiopians greatly value red caps, and the Japanese certain antiquities. See Caspensem tract. 19. disp. 4. sect. 4.

Tannerus num. 32. indeed warns that the matter is full of danger. The same is held by Molina disp. 351. Therefore they say it is to be discouraged. Tanner. num. 34. adds that something may be taken for curious things. Bassaeus joins the affection of the seller, by which he wishes to cling to his own thing, and how dearly he parts with it.

FIFTH, on account of the greater common utility. See Molinam disp. 348. Tomo 2. Fagundez num. 8.

I say the common utility, because the cheapness or necessity of a few is not a cause for increasing the just price; for just as the price of things does not depend on the estimation of a single seller, so neither does it depend on the necessity of a single buyer; otherwise it would be lawful to sell dearer to a poor man than to a rich man, because he needs the thing more. So S. Bonav. in speculo animae, chapter 2. §. concerning frauds, which occur in buying. D. Thom. 2. 2. quaest. 11. art. 1. Rebell. 2. p. de oblig. iust. l. 9. quaest. 15. Molina loc. cit. Fagund. num. 8.

SIXTH, the price is increased by the goodness of things, as Pinellus shows from many laws, 3. p. C. de rescind. vendit. C. ult. num. 32.

SEVENTH, from the transport of goods to the place where they are sold dearer, and the improvement made upon them by human industry, or by nature and the passage of time, as if a horse has grown, etc. So Molina disput. 348. Fagundez num. 11. Tanner. num. 31.

Scottus adds another cause, 4. dist. 15. quaest. 2. art. 2. Maior quaest. 41: that expenses, and the merchant's industry in carrying goods, and the reckoning of the dangers to which he exposed himself in navigation, or in transport by lands infested with robbers, contribute much to increasing the price.

Fagundez num. 12. criticizes this rule, because it is not the merchant's industry that increases the price, nor the dangers, etc., as is clear from the law reg. pretia rerum, ff. ad Legem Falcidiam, and from the text in cap. 1. de empt. et vendit. and from the law si servum meum, ff. ad l. Aquiliam.

These, however, if rightly understood, do not refute Scotus's view, which does not want prices increased immoderately for these reasons, or the shipwreck of other goods to be stuffed full by an immoderate excess of price; this Scotus does not assert.

I shall discuss the other causes in questions.

Whether the price can be raised above the summit on account of ceasing gain, or emerging loss.

I ASSERT that this is lawful. So Fagundez l. 5. cap. 31. Less. l. 2. cap. 21. dub. 4. num. 18. Tanner. disp. 4. quaest. 7. num. 36. Couar. l. 2. var. cap. 3. num. 6. Valentia quaest. 10. p. 2. Therefore, if someone has wheat which he wishes to sell only in the month of May, when now urged to sell, he can demand the price which it will be worth in May, deducting the danger of corruption and deterioration, and by prudent judgment where there is greater danger for the provider, etc. But in truth it is not lawful to sell for that time of year at which it will be worth more; for it is uncertain at what time of year it will be worth more, and the avaricious are often deceived by deferring to May, etc. Wherefore the seller assumes a certain gain, and leaves the danger to the buyer, which is usury, as D. Bonav. teaches, cap. 1. of the Speculum, and Fagundez book 5. chapter 37, and Bassaeus v. Venditio, num. 5.

HENCE you will easily resolve another question, whether it is lawful to demand something above the just price on account of the danger of the capital, to which the seller is sometimes exposed on credit.

They proclaim this usurious: Scotus de iust. l. 6. quaest. 4. art. 1. disp. 2. Nauar. cap. 23. num. 81. Lopes in Instruct. p. 2. cap. 120. Palacius de contract. l. 4. cap. 3. concl. 8. Garcias de contract. l. 1. cap. 23. Toletus de septem peccatis, cap. 5. Azorius p. 1. l. 8. cap. 8. quaest. 7. Rebell. de oblig. Iust. p. 2. l. 9. quaest. 12. This opinion is safe and to be counseled, as Caspens. says, for the following one is dangerous and opens the way to usuries. Bassaeus subscribes, num. 11. The reason is, because these are the fruits of merchants.

The OPPOSITE opinion seems probable: Medina de restit. quaest. 38. causa tertia, and 4. Petto Nauar. l. 3. de restit. cap. 2. p. 1. dub. 11. and p. 2. cap. 3. dub. 10. Valentia Tom. 3. disp. 5. quaest. 20. p. 2. Sà v. venditio, Rodriquez p. 2. cap. 83. Lessius l. 2. cap. 21. dub. 6. num. 54. and others whom he cites, and Sancarellus follows, p. 1. quaest. 47. num. 17. and Salas tract. de usuris, disp. 27. and Diana p. 1. tract. 8. resol. 57. — provided, however, that in the contract it is explained to the buyer that something is taken on account of the danger; which condition is always necessary in every excess of ceasing gain or emerging loss, as Molina notes, disp. 356. and Caspens. disp. 4. sect. 6, so that it be a true danger, and then, he says, it must be reckoned into the price.

Others ADD that the merchant must not propose this danger while inviting the buyer, and first seek a command of faith, or a pledge, to secure it; otherwise, let him demand something on account of the danger.

HENCE step by step you will define: whether a merchant who foresees that abundance will shortly arrive with the incoming supply of goods, and that a loss will arise for himself, can now sell his merchandise immediately at the current price.

The FIRST opinion denies it. So Conradus de contract. quaest. 63. and 64. Ioan. Medina C. de restit. quaest. 35. after Cicero with Antipater l. 3. de off.

They PROVE it, because imminent abundance is considered present; for things little distant in time are considered present in law. Therefore also the Evangelists, relating the consecration of the Eucharist, say: This is the blood, which will be shed for you, Matth 26. Luke 22; namely of the body Luke says: Which is given for you; and yet at the same time both the blood was shed and the body dead, or rather the blood shed first, in which the soul is dispositively, or conservatively.

Yet the OPPOSITE they judge: D. Thom. 2. 2. quaest. 77. art. 3. ad 4. Caietanus there, Syluester under the word emptio, quaest. 15. Valentia disp. 5. quaest. 2. punct. 4. Tanner. disp 4. quaest. 7. num. 53. Scotus l. 6. quaest. 3. art. 2. ad 3. Couar. ad regulam peccatum, 2. p. §. 4. Molina t. 2. disp. 354. Less. l. 2. cap. 21. dub. 5. num. 4. Pinellus l. 2. C. de rescind. vendit. p. 3. cap. 2. num. 24. Fagundez l. 5. cap. 31. de contract. num. 10. Faustus in speculo conf. disp 6. quaest. 15. Molfes. t. 2. tract. 12. cap. 5. num. 69. Nauar. de restit. l. 3. cap. 2. num. 67. Caspens. disp. 4. sect. 9. Diana p. 1. tract. 8. resol. 40. and others among these.

OPTIMAL is the reason which I gather from D. Bonaventura serm. ultimo Hexaëmer. and on cap. 10. of Wisdom, where he notes that it is ascribed to divine Wisdom and to its holy sagacity, that Joseph should gather the grain in the time of abundance from the kingdom of Egypt at a price remitted, and store it to sell more dearly in the time of impending scarcity, Genes. 41. Therefore it is lawful to do these things; otherwise that holy Patriarch would have sinned, and would have been bound to restitution, as Fagundez infers, num. 10 — which is absurd, since Wisdom cap. 10. ascribes all those actions of his to himself as Divine Wisdom. Add moreover that Joseph did this that he might come to the aid of the people in scarcity — which is fictitious, as S. Bonav. says, cap. 2. of the Speculum animae, §. 35, the fruits are principally of justice.

I INFER, however, with D. Bonav. in speculo animae, cap. 2. Molina cited, Rebell. t. 1. de oblig. iustitiae, l. 9. quaest. 6. num. 5. Fagundez num. 14, that it would be against justice and charity if by deceit, fraud, or lying he induced buyers, whence a great loss would follow for them from so much merchandise imprudently amassed together. Some indeed add, with Diana p. 1. Tract. 8. resol. 46. — if asked about the arrival of the goods, etc., whereby the price becomes cheap, both the one denying, even if he knows, that he is not bound to restitution, if the other buys dearly.

SIMILARLY it seems to be against charity, if he gives so great a multitude of those goods to one man, to whom, with abundance pressing in, a grave loss in reselling would fall.

Fagundez num. 21. ADDS finally: if the goods, say wine, oil, and wheat, belonged to some magistrate who knew from the Prince that a law was to be promulgated diminishing the goods or the monies, and he warned his own, that it would be expedient for them immediately to dispose of the goods or monies soon to be suddenly cast down, these would be held to restitution, even if it were the Prince himself, because from justice they are bound to procure goods for all the subjects. So also Rebell. 2. p. l. 9. quaest. 6. Less. l. 2. cap. 21. dub. 5. num. 48. and others. Nevertheless the opposite is taught by Turrian. 2. 2. disp. 18. dub. 3., citing others. And Couar. in regulam peccatum, p. 2. §. 4., nor does Diana dissent, p. 1. Tract. 8. resol. 42.

Whether it is lawful to sell more dearly above the summit price, with payment awaited, than with money counted out.

Within the limits of the just price they concede it is lawful in common, because that whole price is just. So D. Thom. 2. 2. quaest. 77. art. 1. Valentia disp. 5. quaest. 20. p. 2. § 8. Caietanus ad art. D. Thomae, Less. lib. 2. cap. 21. dub. 6. num. 50. Rebell. t. 1. 2. p. l. 9. quaest. 15. Molina t. 2. disp. 355. Baffaeus v. Vendit. Fagundez l. 5. cap. 32. and others in common. See also Caspensem diff. 4. sect. 6. But in truth to buy back more cheaply a thing already sold, on account of the delay of the price, when a cheaper price is offered, smells bad, as Tannerus disp. 4. quaest. 7. num. 52. Carbo quaest. 52. Less. dub. 16. Nauar. cap. 23. num. 51. Petr. Nauar. num. 169. says; and even if Baffaeus num. 4. grants it lawful, yet not to enter first into a pact of buying back, because this is a usurious loan.

For in truth to exceed the rigorous price on account of a merely deferred payment is veiled usury. So the cited authors, with D. Bonau. in speculo animae, cap. 2. §. the third fruit is principally of injustice. And §. the second branch principally of avarice. And again D. Thom. quaest. cit. art. 2. ad 7. Toletus l. 5. Summae, cap. 28. Soto l. 6. de iust. quaest. 1. art. 3. and others adduced. The reason is, because to await payment is nothing else than to lend that money which was to be repaid at once for the whole time during which it is awaited; but for a loan it is not lawful to take anything beyond the capital, as S. Bonav. says. Therefore. Whence Fagundez with Soto condemn merchants who at the end of the market days, when the price is cheaper, sell their goods on credit, or awaiting payment, at that rigorous price at which they were being sold at the beginning of the market days.

They ADD, however, that if at the time of payment the goods will be worth more, they can be sold above the present rigorous price, at that price at which they will be sold when he pays. So Lessius l. 2. cap. 21. dub. 6. num. 52. Rebellus 2. p. l. 9. quaest. 11. num. 3. Yet it must be known with certainty.

Some add that this more can be taken even if the seller had not decided to sell those goods at that time.

BUT this is veiled usury, as Couar. l. 2. var. cap. 3. num. 6. Medina C. de restit. quaest. 38. causa quinta, Lessius, Rebellius, and Fagundez. teach.

The REASON is, because it will be to demand the price of another's goods; for the goods belong to the buyer absolutely at that time at which the price grows, for the seller had not thought to have them then.

NOTE finally that it is possible (as is customary in some parts of the world) for goods to be sold at a lesser price for money counted out; because that money, exposed by the seller immediately to business dealings, yields more, whence from the credit and deferral of the money arises ceasing gain, or emerging loss.

From what has been said you will also define: whether prices can be remitted on account of payment anticipated. And indeed within the breadth of the just price it was already defined at the beginning of the question.

THEREFORE from the precise anticipation it is not lawful to go beyond the limits of the just price; nevertheless on account of emerging loss, or ceasing gain, from that money which I pay in advance, and which, spent in business dealings, I would augment, it will be lawful. See Fagundez cap. 33. l. 5. de contract. Caspensem diff. 4. sect. 7.

For THIS reason many Doctors justify that contract of Wools in Spain on account of anticipated payment, below the lowest price. Fagundez num. 8. reports them. The reason is, because those merchants, anticipating that price, would struggle with that money which they pour out in advance. See Molinam Tom. 1. disp. 360.

Whether Stocolia and Barocolia, in Italian Stocchi, in Spanish MOHATRA, are lawful.

This contract is of such a kind: Titius asks 100 gold pieces on loan from the merchant Claudius, who does not wish to give money, but exhibits goods to the value of the summit price of 100 gold pieces, that he may sell them for money counted out and satisfy his need; but the buyer Titius immediately offers those very goods to the merchant Claudius himself, who buys the same goods at the middle, or lowest price.

HERE at first sight flabby usury is evident. Therefore by the laws of Castile and Portugal they are interdicted under grave penalties; accordingly they assert it to be usury: Rebell. 2. p. l. 9. quaest. 7. num. 7. Medina l. 1. Summae, cap. 14. §. 23. D. Antonin. p. 3. tit. 8. cap. 4. §. 4.

OTHERS, however, with conditions appended attempt to redeem it from usury. The first is, that one stand within the just price. Another, that all scandal be removed, by explaining that in such a contract there is no iniquity, since it always stands within the limits of the just price. So Nauar. cap. 23. num. 91. Petrus e Navar. l. 3. cap. 2. num. 170. Homobon. in Exam. p. 2. tract. 9. cap. 10. Regius in suis resol. casu 14. and 34. Summa Corona, p. 2. cap. 7. Less. l. 2. cap. 21. dub. 16. num. 130.

NOR does it avail to object that there is deceit, since the seller and the buyer are the same, because if another can buy at that price, why not also the merchant? Indeed the seller is freed from the care of selling through the Broker. Yet he cannot compel this, nor have a pact about it, as Graff. p. 1. l. 1. cap. 209. Bonac. de contract. disp. 3. quaest. 3. p. 3. num. 20. Baffaeus num. 4. notes.

Some ADD another condition, that this sale not be made with the intention of buying back at a cheaper price. So Molina T. 2. disp. 310. Angel. v. usura, n. 60. Lopes l. 1. de contract. cap. 34. Vegha in Summa, T. 2. cap. 131. cas. 62. Azor. p. 3. l. 8. cap. 11. and Fagundez l. 5. cap. 34. num. 2. seems to approve.

BUT Salas de empt. disp. 37. and Diana p. 1. Tract. 8. resolut. 58. reject this third condition, because where nothing beyond the capital is drawn into the pact, nor hoped for as a premium, or a debt of justice for the loan, there is no usury, if an increase is intended, as Molina wishes, T. 2. disput. 305. Valentia disp. 5. quaest. 21. p. 1. Nauar. de restit. lib. 3. cap. 1. dub. 2. num. 19. and the same Salas tract. de usuris, disput. 5. numero 5.

I confess this contract stinks to me, because no foundation of this gain is present except usury, and the very thing which does not belong to the one gaining, and it is usury in hope, as the holy Doctor argues in speculo animae, cap. 2. §. the third fruit is principally of injustice. Just as usury is manifest when the promise intervenes by pact, as the holy Doctor notes.

Nor do many Casuists defend it soundly, pretending with empty subtleties that there is nothing evil if the merchant sells his own goods, if he buys them from another, and the prior seller buys them back; since he is not here in a worse condition than the other merchant, who can buy them. I say, they do not soundly urge these things, since moral matters are not to be handled so that the individual circumstances are examined separately; for even to touch another's goods with the hand is harmless; and to handle them with a closed hand, and finally to leave the house, has no fault; but join these, and it is theft. Similarly, to sell, to buy, and to resell are innocent; but if they are done so that the seller gives a horse to the Young man for 100 gold pieces, with some time agreed for payment, and the Young man gives the horse back to the seller for 60, in money counted out: who will be able to vindicate such a contract from usury, at least in hope?

Avarice has devised other similar contracts, which see in Fagund. 2 cap. 34. Molina disp. 362. Rebellio l. 9. quaest. 7. num. 7. Bassaeo loc. cit.

I set out one that is frequent. Certain rich men give flocks of sheep, or herds of cattle, to some shepherds or herdsmen, that they may pasture them, demanding the wool in part, but leaving the milk, cheese, and lambs, yet so that they perish for the shepherds, meanwhile perishing.

Others buy, e.g., a hundred sheep at the common price with money counted out. But with a pact that they be kept unharmed until the month of June; meanwhile demanding all the fruits of milk, wool, etc.

I say with D. Bonav. in speculo animae, cap. 2. loc. cit. that it is tacit usury, when someone has something in common with another, whatever it may be, and the danger, or loss, is not in common; Fagundez lib. 5. cap. 34. num. 15. Molina T. 1. disp. 362. subscribe.

The reason of D. Bonau. is clear, because the thing, just as it bears fruit for the Lord, so also perishes for him.

How far Buying and Selling in Monopolies is illicit.

Monopoly, as Molina says, disput. 345, is called as it were one selling. Now a Monopoly arises when one, or a few, bring it about that they alone sell some kind of merchandise at whatever price has pleased them.

Moreover a Monopoly is defined: It is a convention, machination, and industry of certain merchants, by which they bring it about that they alone either sell some kind of goods, or sell at a certain price.

Now this can be done in four ways: either conspiring among themselves about the price, so that no one sell cheaper. Or bringing it about that they alone sell certain goods, or buying up all the goods of a certain kind, and suppressing them, until the price of them has risen very much. Or impeding that they be carried off elsewhere by others. I shall discuss all these.

I suppose, moreover, with D. Bonavent. in speculo animae, cap. 2. at the end, that the gathering is unjust when someone gathers even his own goods, say the fruits of the earth, from the mere ardor of growing rich, or that scarcity be procured, and the goods stored be afterwards sold more dearly, and again the price be restored.

Therefore as to the first case: if the merchants do not sell beyond the limits of the just price, nor is it ordered to the bringing in of scarcity, I say it is not iniquitous against justice. So Less. lib. 2. cap. 21. dub. 20. num. 145. Molina t. 2. disp. 345. Navar. in sum. Lat. cap. 23. num. 42. Maior in 4. dist. 15. quaest. 4. Sylvester v. emptio, quaest. 18. Fagundez l. 5. cap. 35. Bass. num. 24. nevertheless say that such men sin against charity. Nauarrus indeed speaks in general. And the holy Doctor indicates this same thing, while he says that those making monopolies from the mere ardor of having, sin. Some, however, among those cited by Fagundez say they sin against justice, whom they certainly violate, exceeding the just price.

As to the second case: it is certain that the Prince can grant, as some say, the faculty (in Italian Appalto), and the merchants can accept it, provided it not be to the public loss. So Molina t. 2. disp. 345. Fagundez l. 5. cap. 35. and others. But let the just price be observed, says Bassaeus num. 25.

As to the third way, when many together buy goods, that they may afterwards sell at a dearer time at their pleasure. I say with D. Bonav. that they sin against justice, and are held to restitution. So also Gabr. 4. dist. 15. quaest. 10. art. 3. Medin. de restit. quaest. 36. Sylvest. v. emptio, quaest. 10. Angelus v. negotiatio, Sums l. 6. de iust. quaest. 2. art. 2. Maior in 4. dist. 15. quaest. 4. alioqui 41. Fagund. l. 5. cap. 35. Azor. 3 p. l. 8. cap. 28. Regin. l. 25. num. 327. Sylvest. quaest. 77. art. 1. quaest. 2. Conrad. de contr. quaest. 51 Rebell. 2. p. de oblig. iust. l. 9. quaest. 5. Bassaeus num. 27. where, with Fill. tract. 35. num. 214. Less. l. 2. dub. 21. num. 153. Molin. disp. 345. adds that it is not done against commutative justice, but Legal, and therefore they are not held to restore. But they are deceived: for by the law of nations buying ought to be free to individuals in the whole breadth of the just price, and accordingly an injury is done to the buyers by that whole agreed increase of the price.

But to buy up all the goods, or so great a supply, that scarcity is brought in, or the liberty of buying at the just current price in due time is taken from individuals; is an injustice compelling to restitution. See Medin. de restit. quaest. 36. §. penult. Sylvest. v. emptio, quaest. 10. Ang. v. Negotiatio, Sot. l. 6. de Iust. quaest. 2. and the others cited above.

Wherefore in vain does Fagund. num. 7. say it is licit; if liberty and abundance remain.

The fourth mode of monopoly is unjust by the consent of all, as Fagund. num. 9. says. In vain indeed does Bassaeus num. 27. add, that this is true if the merchants are diverted by force, or fraud; not, if by prayers, or persuasions. Certainly they still inflict injustice on the citizens against the law of nations; even if not on the arriving merchants, who nevertheless, for the most part, suffer some loss.

Whether the seller is held to disclose a grave defect of the thing.

I ASSERT that the seller is held to reveal a grave defect of the thing known to himself; otherwise he is held to all damage, even resulting; for instance, if he gives a diseased sheep which infects the flock. l. Iulian. ff. de act. empt. et l. 1. C. de aedilit. says D. Thom. 2. 2. quaest. 77. art. 3. D. Bonan. in speculo animae, cap. 2. §. secundus ramus principalis, Molin. t. 2. disp. 353. Nauar. cap. 23. num. 89. Medin. C. de Restit. quaest. 34. Tanner. disp. 4. quaest. 7. num. 56. Fagund. de contract. l. 5. cap. 38. Baldus, v. Venditio, num. 14. and the rest with these; and Diana Tract. de contr. after D. Ambr. l. 1. de offi.

But if a hidden grave defect gave the buyer cause for the contract, which knowing it he would not have entered, the contract is void, and there is given to him the redhibitory action for taking back his price, the thing being returned: l. 1. et l. si sciendum, 19. ff. de aedilit. edicto, which action lasts for six months, l. si tam: n. 4. vers. Non nocebit l. Per sex menses, ff. eodem. If he has not used it within those six months, he can within another half-year bring the action of estimation, which lasts for a year, l. si tamen cit. The time of both actions begins from the day of the buyer's knowledge.

But if ignorance of the defect does not give cause to the contract, but falls only into this, that the buyer would still have bought, even at a lesser price, the contract is valid, as D. Anton. says, 2. p. t. 1. cap. 17. §. 6. Caiet. loc. cit. D. Thom. Sotus l. 6. de iust. quaest. 3. art. 2. Less. l. 2. cap. 7. Fagund. num. 10. Baldaeus num. 14. Yet the seller is held to give back the greater amount. The same says num. 15. if the defect is not grave. But the buyer is to be warned not to resell it dear in turn.

SOME ADD, however, that if the buyer, trusting his own judgment, chooses some one thing out of many, asking nothing except about the price, the seller does not sin against justice even if he does not disclose the hidden defect, provided he does not sell above the just price, but deducts from the price an estimate of the defect. So D. Thom. art. 2. and 3. Sotus l. 6. quaest. 3. art. 2. Antonin. 2. p. tit. 1. cap. 14. §. 6. Less. t. 1. de Iustitia l. 2. cap. 21. num. 91. dubit. 11. Molina disp. 352. Ludou. Lopes 2. p. Instruct. consc. cap. 42. Tanner. num. 59. — provided, however, the seller does not cover the defect by deceit, mixing that thing with other excellent ones.

But if the defect is patent and manifest, in the external forum no action is given against the seller, unless the buyer is defrauded beyond half the just price. It is gathered from Leg. 1. §. si intelligatur. And Leg. si tamen §. si quis, ff. de aedilit. edict. See Fagundez num. 23.

In the internal forum, however, if the price be equal, he is held to nothing. So D. Thom. quaest. 77. art. 3. Yet if the seller perceives that the buyer is ignorant of the defect, he is held to warn him, by the common opinion with Molina disp. 353. But D. Thom. with others holds the opposite, nor does Tannerus refuse it, num. 62.

For further understanding, note: when someone sells or buys beyond half the just price, there is given in the external forum an action against him who commits the injustice, and he is bound either to restore the excess or defect of price, or to have the contract rescinded, l. 1. C. de rescindenda vendit. cap. cum dilecti, et cap. cum causa de emptione et venditione. Moreover it is a mortal sin to violate the mean of the just price, in which justice consists, namely by exceeding the highest in selling, and by diminishing below the lowest in buying. The reason is, because each departs from the mean in which the virtue of justice consists; otherwise even fraudulent measures would be licit against that, Deuter. 29. Thou shalt not have diverse weights in thy sack, as the holy Doctor infers in speculo animae, cap. 2.

I CONCLUDE as a general rule that in every sale there is to be deducted as much as the defect of the thing itself is worth; otherwise there will be injustice, as Caspens. notes, sect. 10. adding that the seller can keep a merely negative silence, demanding, however, only the just price, if he cannot find a just price for his good elsewhere. And this is true even if he knew the buyer would not have bought, had he known the defect, and so bought involuntarily; nor would he act against this, in rebus. §. Item, qui sciens, ff. commodati, statuentem, that the seller reveal the hidden defects of the thing; otherwise an action is granted against him.

He says this is the COMMON opinion; for if we wished to make such contracts invalid, innumerable lawsuits and dispensations would arise, which are demanded in this way even if they would be invalid without falsehood, since some things are tacitly not to be expressed by law, which, if expressed, would not be granted. It is the same in donations, almsgivings, legacies, testaments, elections, presentations, and other things of this kind. Therefore otherwise almost nothing in human dealings would ever be firm, nothing ratified, as Valentia says, quaest. 20. p. 4. and innumerable lawsuits would boil up to void purchases, to the great inconvenience and detriment of the Republic.

THEREFORE he answers the opposite reason thus: that a contract of this kind is voluntary, unless the buyer was deceived simply. But this is not true, as I said.

On that law, Molina says, disp. 392., it is to be understood when the defect is grave, and a harmful and less useful thing is sold. In this sense I do not refute Caspensem, as I said.

On the other hand, even the buyer of a gem from a peasant who does not know it, ought to buy at the just price, not cheaply, as Tanner. warns, num. 67. and Molina disp. 253. num. 12. Yet that a field can be bought, in which I know there is a treasure, at the common price, they teach with D. Thom. quaest. 66. art. 5. ad 2. Valentia quaest. 20. p. 4. Sù under the word emptio, Tanner. num. 66.

Whether a thing sold, but not yet delivered, perish to the buyer.

I SUPPOSE that if the thing has already been delivered, it will perish to the buyer. See Molinam disp. 366. The reason is, because by delivery ownership has been transferred to the buyer. But a thing perishes to its owner and deteriorates, as the Doctors note, in l. Quod si ff. de periculo, et commod. rei vendit.

I ASSERT first, that if the thing has not yet been delivered, and is determinate, as this horse, this ox, etc., it perishes to the buyer. So the Doctors commonly, with Fagundez cap. 47.; for thus do the Laws dispose, and deservedly; for the right has already been acquired by the buyer, and the very sale of a determinate thing, the law of nations being regarded, is sufficient to transfer ownership to the buyer; for that it is not really transferred before delivery comes from the disposition of the civil law, which for certain reasons, to avoid lawsuits, so established; yet the civil law does not thereby wish to prevent the commodities and incommodities of the thing from belonging to the buyer.

I EXCEPT, however, first, if the thing perishes or deteriorates through the fault of the seller, for instance if through gross or light fault he does not guard the thing.

SECOND, if the seller was in default in delivering the thing sold; for then he himself is at fault, as D. Bonav. notes in speculo animae, cap. 2. ad finem. Then therefore it perishes to the seller, as is gathered from l. illud, ff. de periculo, et commodo rei vendit. and they teach, Less. l. 2. cap. 21. dub. 12. num. 96. Sylvester v. emptio, quaestione 3. Molina loc. cit. Fagundez num. 4. Bassaeus num. 23.

THIRD, if it has been so agreed in the contract; this is taken expressly from l. in venditione, ff. de per. et com. rei vend. and they teach, Molina loc. cit. Fagundez num. 6. Bassaeus loco cit.

FOURTH, when the thing is confiscated on account of the crime of the seller. Thus the authorities cited above hold.

FIFTH, if the seller in contracting said something whereby the buyer would believe the thing to be durable. Likewise if the seller knew the thing would not last, and did not warn the buyer, l. si vina, ff. de pericul. et commod. rei vend. See Molinam loc. cit. Fagundez num. 8. Bassaeum loc. cit.

I ASSERT second, that if the sale be made in genus, as the Jurists say, or if the thing sold be indeterminate, as the Theologians say — for instance, if from his flock ten sheep, from the herd two cows, without designating them — the flock or herd perishing, it perishes to the seller; Less. l. 2. cap. 21. dub. 11. num. 97. Molina loc. cit. Fagundez num. 10. cap 47. It is clear from Leg. In ratione, §. diligenter, ff. ad l. Falcidiam, and Leg. Incendium, Cod. si certum petatur.

The REASON is, because from such a purchase the buyer has acquired only the right that ten sheep be delivered to him, but no right in particular.

They commonly ADD third: when some thing to be measured is sold whole and entire, as this whole cask of wine, this whole granary of wheat, this whole cask of oil, for a certain number of regali for every measure: if they perish before they are measured, they perish to the seller; but once measured, to the buyer; Less. l. 2. cap. 21. dub. 12. num. 97. Molina loc. cit. and others with Fagundez num. 12.

However, Baldus, and Paulus de Castro ad l. 2. C. de per. et com. rei vendit. hold that such a sale is to the body, not to the measure, except when certain measures are sold by deceit or by the heap; and therefore it perishes to the buyer even before measurement. Others reject this, with Fagund. num. 12. and others there, and Bassaeo, num. 13. Yet Fagund. himself fights with himself, as I shall say, quaest. 13.