Palladium theologicum, Tomus quintus: De virtutibus

On the loan (mutuum) and Usury.

I shall treat these two under a single title, since Usury is nothing other than the abuse of the Loan; of which the pages of both Testaments speak clearly; moreover, the Canons of Councils and the decrees of Pontiffs plainly condemn it. Yet Scholastics are not lacking who strive to purge so shameful a vice from every stain, and who rather cut up than examine the material of the most delicate consequence with empty little distinctions — men who have come to such rashness as to calumniate simple usuries as licit to laymen before Alexander III, although they were most expressly condemned in the Council of Nicaea, can. 8, as I shall say below.

What the Loan (Mutuum) and Usury are, and why the latter is a sin.

Mutuum is said from this, that what is mine becomes yours, l. Mutuum, ff. si certum petatur. And thus it is defined: A loan (mutuum) is the transfer of a thing as to dominion, whereby it at once becomes the recipient's, with the obligation of returning at a future time another thing of the same kind.

It is gathered from D. Bonaventure in 6 Luke at those words: Et si mutuum dederitis. It is given by Caspens. tract. 19, disp. 3; Bassaeus v. mutuum; and the others ex l. 1, 2, ff. si certum petatur.

But it differs from the Commodatum: for in the latter only the use of the thing lent is transferred, not dominion, as is found in the Institutes, Quibus modis re contrahitur obligatio. Hence if the thing borrowed perishes, it perishes to the borrower; but the thing lent for use, if it perishes without the fault of the one who borrowed it, perishes to the lender.

Next, in the commodatum the same thing is returned, say the same horse, etc. But in the mutuum another is returned, say other wheat, etc., of the same price, the same kind, and quality. By which means it differs from sale, exchange, and other contracts, in which there is not returned a thing of the same quality and kind, but a thing altogether different, as money for wheat. This difference is to be noted gravely, because where there is no mutuum, Usury cannot subsist.

Usura is said from usu aeris, as the holy Doctor says in speculo animae, chap. 2, §. the third of the principal fruit of injustice, etc.; for there are certain things whose use is the consumption of the thing, and whose dominion is transferred to the recipient, as money, and grain, and wine. Whence he who sells the use of such things is called a usurer, and has the character of mortal sin against justice, because he sells to others what is not his own, the dominion having been transferred.

Thus usury is defined by the holy Doctor in the Explanation of the Terms of Theology: It is avarice acquiring something from a loan beyond the principal. This definition is followed commonly, as is seen in Valencia disp. 5, question 21, puncto 1. But this word is taken by Theologians and Jurists for the action itself which is called the sin of Usury.

But the word Usury is also accustomed to be taken for the proper object of the usurious transaction itself, and thus usury is nothing other than that gain which one receives above the principal in the use, namely for the use of the money which he gives in loan. This gain is also called Foenus from foetura (bringing forth), because, as Aristotle says, in the first Politics, chap. 7, in usury money begets money, and in this sense usury is wont to be said to be restorable. See Valencia above; Molina tract. 2, disput. 303.

Therefore Usury is gain proceeding from a contract which is called mutuum, not from elsewhere, nor under another title, but as the cause of the loan. But he who gives the loan is called the Mutuans; he who receives it, the Mutuatary; the thing given in loan is called Sors (principal), in which sense it is taken in 14. quaest. 3, cap. Plerique, and often elsewhere in Canonical law; which name is derived from the contract of Partnership, in which each of the partners casts in his sors, or share, and draws it out at the time of partition, and then receives the part of the gain which beyond the sors pertains to him. The sors is also wont to be called Capitale or Principale; but the gain or access above the sors is called Usura, if it accrues by force of the mutuum, as Caspensis notes tract. 19, disput. 3, sect. 1, n. 4; Bassaeus V. Usura.

But Usury is divided commonly by the Doctors after D. Bonaventure in the cited place of the Speculum, into Real and Mental, or Exterior and Interior (others call it conventional and non-conventional). Real or conventional usury is that in which there intervenes some pact or convention concerning gain beyond the Sors by reason of the loan. But this pact is twofold: one express; the other tacit or implicit.

Express, when the lender agrees with the borrower in express words to give him something beyond the sors, and on this pact lends to him.

Tacit, however, when a convention is made not in express words, but in veiled and palliated ones, by which he hints that he wishes something beyond his sors; as if he should say: I will lend you a hundred, but you know the custom. Or: I entrust my money to you in the confidence that it will not return to me empty. Or: I know you to be a grateful man, etc.; and the borrower is silent, or hints that he consents.

Mental usury is when, no pact intervening, neither explicit nor implicit, concerning the returning of something beyond the sors, one lends with that mind and intention that he may receive gain from the loan, not from the gratitude or liberality of the borrower, but from fear lest the loan be otherwise denied him; which intention, however, he does not express, and it is said to be in hope. Of this usury the text is understood in cap. consuluit, de usuris, where the consultor puts the question: Whether he who, every convention ceasing, gives a loan with that mind that he may receive gain from it, is to be judged a usurer in the judgment of conscience. And he answers that in the forum of the soul he is to be judged a usurer and compelled to restitution.

Others divide usury into open and palliated: Open, when the mutuum is formal, and gain is intended from it, whether an express or tacit pact intervenes. But when the mutuum is not formal, but only virtual, lying hidden under another species of contract, the gain intended is called palliated usury, as happens when one sells a thing dearer on account of the postponement of the payment of the price, as the holy Doctor says. These things posited:

I ASSERT first, that Usury is a sin forbidden by natural, divine, and human law. So with D. Thom. question 78, art. 1; S. Bonaventure in the places to be cited; it is the common consensus of Theologians, as Valencia relates question 21, puncto 1; Molina Tract. 2, disp. 304; Tanner. disp. 4, question 7, n. 75, contra Molinaeum, tract. de commerc.

That it is against natural law is proved by D. Bonaventure in the cited place of the Speculum, and in the passage adduced to 6 Luke, because it is against Commutative Justice, to which it belongs to establish an equality between what is given and what is received: But injustice is forbidden by natural law. The antecedent is proved, because it is against commutative justice in any contract whatever to exact more than is given; but he who receives gain for a loan exacts more than the thing is worth: Therefore. The assumption is proved by the holy Doctor, because money lent is not deteriorated by the accommodation: Therefore it ought not, according to commutative justice, to owe something beyond itself. Next, because that money of itself bears no fruit, but the whole reason of fructification is from the industry of the user. Why, then, is more owed? Finally, rather it devastates and consumes, without affording from itself anything that replenishes.

Moreover, the dominion of the thing lent passes to the borrower. Therefore the lender exacts gain from a thing not his own. Finally, because the borrower bears the whole risk of the thing; but the advantage accrues to the lender; from which the holy Doctor also draws the further inference, that money is loved more than one's neighbor.

Another argument the holy Doctor brings in the cited place of the Speculum, by which D. Thomas strives. By natural law it is forbidden to sell the same thing twice, or to sell what is not, or for what is not, what is one's own; to exact fruit; but he who receives gain from a loan sells the same thing twice, because he receives an equal value and further gain; or he sells what is not, if he receives gain for the use, since such use is not distinguished from dominion, nor is it given without it. Scotus also uses this argument, 4 distinct. 15, question 2. To whom Molinaeus ridiculously answers, that I can even receive for what is not mine, but another's, if it is owed to me. But how do you prove that that is owed to me with gain, O stupid head!

THAT Usury is forbidden by positive divine law is proved by the holy Doctor in the places alleged, from many Scriptures of the New and Old Testament.

Psalm 14: Domine, quis habitabit in tabernaculo tuo? aut quis requiescet in loco sancto tuo? Qui pecuniam suam non dedit ad usuram. Weighing which passage, the Fathers of the Council of Nicaea, can. 18, relate thus: Many clerics following shameful gains have forgotten the Divine precept, which says: Qui pecuniam suam non dedit ad usuram; and in the same way this passage is understood in the Roman Council of Pope Martin, and is related in 14. quaest. 4, C. si quis oblitus. The same is forbidden in Exodus 22: Si pecuniam mutuam dederis populo meo pauperi, qui habitat tecum, non urgebis eum, quasi exactor, nec usuris opprimes. The same the holy Doctor proves on Psalm 71, in those words: Ex usuris, et iniquitate redimet animas eorum.

So Ezech. 18 pronounces the sentence of death upon the usurer, saying: Non vivet, cum universa haec detestanda fecerit, morte morietur.

PROVERBS 28: Qui coacervat divitias usuris, et foenore liberali in pauperes congregat eas, etc. oratio eius erit execrabilis.

HE URGES especially that of Luke 6: Peccatores peccatoribus foenerantur. Mutuum date, nihil inde sperantes. By which testimony Urban III proves it in C. Consuluit, extra de usuris. And the Lateran Council under Leo X, session 10, not far from the beginning, where the supreme Pontiff, with the holy Council approving, says thus: Dominus noster, Luca Evangelista attestante, aperto nos praecepto obstrinxit, ne ex dato mutuo quidquam ultra sortem sperare debeamus.

THE SAME the holy Fathers gravely affirm from the aforesaid Scriptures.

BASIL, on Psalm 14, pondering that passage: Qui pecuniam suam non dedit ad usuram, says: Do you not know that a greater heap of sins presses upon you than is the increase of wealth which you hunt from usuries.

S. GREGORY of Nyssa, homily 4 on Ecclesiastes: He who has called usury another robbery and parricide will not have strayed far from what is fitting.

S. AUGUSTINE, on Psalm 36: Do not be usurers, and therefore I do not will it, because God does not will it. Whence does it appear that God wills this not? Qui pecuniam suam non dedit ad usuram, Psalm 14. And how detestable, how odious, how execrable it is, I think even the usurers themselves know.

S. JEROME, on Psalm 54, at that passage: Non defecit de plateis eius usura, et dolus, says: All things that are forbidden in the Law have grown up to a heap of sin. In the Law they are forbidden to receive usury. Usury is to receive more than one gives.

THAT Usury is also forbidden by human law is proved by D. Bonaventure in the Confessionale, chap. 5, particula 54, from the whole title de usuris, which is evident also in 14. quaest. 4 and 47 dist., by many chapters, where usurers are forbidden under grave penalties, and lastly are deprived of Ecclesiastical burial. See Sylvestra, verb. Usura, 1. §. 9.

Usuries are forbidden also by CIVIL law; for the Authent. de Eccles. tit., at the beginning, commands the decrees of the Council of Nicaea to be observed, in which usuries were forbidden by canon 18, and it is related in C. Quoniam, 47 distinct., and in the Leg. cunctos populos, Cod. de Sum. Trin. et fide Catholica, Justinian commands all subject to him to follow the faith of the Roman Church and to render obedience, by whose authority it stands established in the aforesaid decrees that usury is forbidden. The Gloss uses this argument on Cap. Quid dicam, question 14, 4.

LET THESE THINGS be heard by those who say that usuries are not a sin; for they are condemned as heretics in the Clementina unica, de usuris, in C. Vien. under Clement V. Perish, therefore, the Albanenses and the Greek Schismatics, who denied this. Away with Carolus Molinaeus, who foolishly in his Tract. de Commerciis, et usuris admits some usuries, and erects certain silly little objections to obscure a doctrine so clear in the light of nature — a doctrine which even Aristotle, 1 Politic., chaps. 6 and 7, and 4 Eth. chap. 1, and Cato in Cicero, book 2 de offic., and others perceived by the mere twilight of nature, confessing it to be against nature; so much so that the most wise Cato called it the killing of men, at which Ausonius alludes, Eydil. 15, singing:

— Turpia lucra Foenoris, et velox inopes usura trucidat.

YOU WILL OBJECT first, Deuter. 23: Non foeneraberis fratri tuo, sed alieno. Since, therefore, it concedes giving usury to foreigners, that is, to the Gentiles, it does not seem forbidden by natural law.

Conradus answers, quaest. 24, de contract.; Medina, question 2, de usura; Caspens., number 11: that it was conceded because God had already transferred dominion over the things pertaining to those Gentiles to the Hebrews. And so, as he conceded to them to carry off the treasures of the Egyptians, so also he had transferred the foenerari — the interest and principal of the Chanaanites — to them, so that they could exact it. Conaruv. subscribes, 3 variar. cap. 1; and it is taken from St. Ambrose, book de Tobia, chapter 15.

D. Bonaventure answers in the passage adduced to 6 Luke; D. Thom. question 78, art. 1; Alens. 3 p. quaest. 36, membr. 4; Sotus book 6 de Iust., question 1, art. 1; and Valencia: that the Jews sinned in lending thus at usury, but that it was permitted with impunity on account of their obstinacy; just as also the bill of divorce; and to wash away this guilt of theirs the Psalmist sings of the Messiah to come, Psalm 71: Ex usuris, et iniquitate redimet animas eorum. The Hebrew text pleases as rendered by Pagnino, where the exclusive particle (but) is not found: Non foeneraberis fratri tuo usura pecuniae, usura cibi, usura omnis rei, qua foenerabitur extraneo תַּשִּׁיךְ (the verb by which) he will lend at usury; where he seems gravely to rebuke the Jews, saying: Let it be far from you, nor let Usury be named among you, which you exercise so obstinately with the Gentiles. Therefore he permitted it that a greater evil might be avoided, as the holy Doctor says.

YOU WILL OBJECT secondly, that of Luke 6: Mutuum date, nihil inde sperantes. But this is a mere counsel, as is gathered from those preceding words: Si benefeceritis his, qui vobis benefaciunt, quae vobis est gratia? The same is gathered from the following words: Et erit merces vestra multa. So Sotus book 6 de Iustitia, quaest. 1, art. 1.

The holy Doctor answers, whom Couar. follows, book 3, var. cap. 1, num. 5; Nauar. in the Manuale, chap. 17, num. 107; and Valencia; nay, Urban III in C. consuluit, extra de Usuris; Leo X in the Concil. Later., sess. 10: that it was defined there, as Medina notes, quaest. 2, de Usura, that there is a precept forbidding usury; otherwise Alexander III would not assert with sufficient certainty in the Lateran Council — which is related in cap. Quia, extra, de usuris — that Usury forbidden in the pages of both Testaments, nor would he say solidly in cap. super eo, of the same title: Usuram utrumque Testamentum detestari. For there is hardly any other passage in the New Testament reproving usuries. Add also the Roman Penitential, far more ancient than Alexander III, where it is read: If anyone receives usuries, he commits robbery; and therefore whoever exacts it shall do penance for 3 years, one year on bread, namely, and water.

NOR does Sotus satisfy when he says that both Testaments forbid usuries only insofar as they forbid theft. For the contrary is the case; for the alleged Pontiffs prove from that text that usury is specially forbidden. The same is interpreted by the Fathers adduced, and by Beda on chap. 6 of Luke.

The holy Doctor proves this OPTIMELY, and Valencia after him; for he had premised the natural precepts in general: Prout vultis faciant vobis homines, et vos facite illis similiter; but soon adds the singular natural precepts of doing good in necessity, not only to friends, but also to strangers and enemies, and he also sets down the precept forbidding usury, which is against the natural precept of not doing to another what you do not wish done to yourself. Besides, the declaration of the Church is enough for me, and more than enough, which is the column and firmament of truth. If the condemned Molinaeus does not receive it, good Catholics at least receive it. But this declaration, beyond the places assigned, is found clearly in the Fourth Council of Carthage, can. 67; the Council of Calchitensis in England, cap. 17; the Council of Paris in the year 819; that of Meaux in the year 845, can. 55; the Capitulary of Aix-la-Chapelle, cap. 5; the Council of Crolseiano in the year 909, etc.

Whether USURY is to lend, so that you, when I shall have need, lend back to me, or buy from me at a just price.

The QUESTION is: whether a lender can lawfully insert into the agreement that obligation of the natural law by which, from honesty, we are bound to do good to our benefactors, and indeed without any inconvenience to the borrower.

NOTE that four conditions of usury are commonly assigned. The first is a loan that is commonly of things consumable by use. The second is profit beyond the principal, or the capital sum given. The third is that the profit be a thing estimable by price. The fourth, that this profit arise precisely from the force of the loan itself, not from elsewhere, for instance from lucrum cessans. So Bassaeus num. 1. Molina disp. 303. tom. 2. Sylvester V. usura 1. quaestio 2.

The FIRST opinion holds that such loans are licit even with a civilly binding agreement. So D. Ant. part. 2. tit. 1. cap. 7. §. 15. Adrianus in 4. de restit. quaest. de usura, and others cited by Bassaeus.

The SECOND opinion is that it is licit if only an obligation of a grateful mind is introduced into the agreement. Thus Azor part. 3. lib. 5. cap. 7. Rodriquez tract. 2. cap. 197. Lessius lib. 2. cap. 20. dub. 8. Filliucius tract. 34. 2. part. num. 38. Sà V. mutuum, num. 3. Salas de usur. dub. 9. 10. 11. 16. et 21. saying that such obligations are fulfilled without inconvenience, from Vega tract. 2. cap. 131. casu 76. Diana p. 1. Tract. de contr. resol. 59. et 60. Bassaeus, V. usura 2. num. 5. Malder. 2. 2. tract. 5. cap. 3. disp. 4.

The BEST opinion, however, is that of D. Bonavent. in his commentary on Luke 6, where he indeed grants lending for the hope of a like service, for instance a return loan, etc.; yet he rejects every agreement, both civil, and even that of a grateful mind.

This is the common opinion. So D. Thom. q. 78. art. 2. ad 2. et 4. and there Caietanus, Salonius, Aragonius, Bannes and Petrus a Navarra lib. 3. de restit. cap. 2. disp. 4. num. 249. Molina tract. 2. disp. 308. et 309. Covar. lib. 3. var. cap. 1. Sylvester V. usura 1. quaestio 2. Medina in sum. lib. 1. cap. 14. §. 23. num. 43. Lessius lib. 2. cap. 20. dub. 8. num. 58. Megala 2. 2. lib. 2. cap. 15. quaest. 2. num. 29. Molfesius part. 2. tract. 12. cap. 23. num. 45. and Caspensis tract. 19. sect. 3. et 4.

I ASSERT, with this opinion, that every such agreement is illicit, as being usurious.

It is PROVED by this argument of D. Bonavent., which Diana proclaims most valid; for the civil obligation, or that arising from the insistence upon such acts, is estimable by price, and consequently money, as is evident from Aristotle lib. 4. Eth. cap. 1. and D. Bonavent. ad cap. 4. Regulae nostrae, but to exact money for a loan beyond the principal is usurious: Therefore.

NOR do the adversaries solve it sufficiently; for one cannot submit without inconvenience to being compelled to lend back in return, always having to visit that man's workshop, frequent that mill, etc.

NOR let them say that there is no price for the loan, because the borrower has in that mill what he would have elsewhere; for he is compelled, and deprived of liberty.

But OBSERVE that Diana and Bassaeus do not rightly assert that the authors of our opinion exclude only the civil obligation, but not an agreement under the title of gratitude; for S. Thom. ad 2. excludes the civil obligation, and ad 4. excludes any agreement whatsoever, even if he should admit that an obligation exists on the side of the recipient of the loan, under the title of a grateful mind; but it differs greatly to add an agreement, and in this way other authors also think, as is evident, and Valencia notes punct. 2. §. 7. rtio quaero, and I shall say quaest. 4. where I shall also report the words of S. Bonaventure.

HENCE also you will deduce what Diana asks subsequently, resol. 50. Whether the lender may insert into the agreement that the borrower immediately sell, buy, lend back, and perform similar services.

Indeed Diana ASSERTS, with Reginaldo tract. 2. lib. 25. cap. 11. num. 198. that it is licit; so also Bannes quaest 78. art. 2. asserts it probable, and Pet. Nauar. lib. 3. de restit. cap. 2. num. 235. et 242. Layman lib. 3. sect. 5. tract. 4. cap. 16. teach it absolutely.

Yet Lopez, Sotus, Aragon. and Graffius teach that this is a usurious contract, cited by Sala de usuris, dub. 10. Rebell. part. 2. lib. 8. quaest. 4. num. 10. and it is the opinion of D. Bonavent. locis allegatis, for he himself detests every obligation entered into by agreement.

Whether it be licit to lend with an agreement that he who receives the loan confer an office or an Ecclesiastical benefice.

D. Bonaventure TEACHES that this is usury in speculo animae, cap. 2. §. Item, ut dictum est. Aragon follows him quaest. 78. art. 2. disp. 2. Medina sum. lib. 1. cap. 14. §. 23. Lopez part. 1. cap. 56. Medina, Complut. quaest. 4. de usuris, Reginaldus tract. 2. lib. 25. cap. 11. num. 202. Rebell. part. 2. lib. 2. quaest. 14. num. 23. who proclaim it a simoniacal usury. For it is usury insofar as he intends utility from the loan; but simony hands over a spiritual thing. So also Tanner. num. 89. Nauar. super caput si foeneratoris, 14. quaest. 15. Bensseldius quaest. 4. in cap. Consuluit.

DIANA p. p. Tract. 8. resol. 61. admonishes, with Peter Navarro, that an agreement introducing the (immediate) conferral of a benefice would not be usury, because an obligation to do an act, lasting only a short time, is not estimable by price: Therefore, to lend with an agreement that the borrower immediately confer a benefice is not usury. The same is said by Malder. 2. 2. tract. 5. cap. 3. dub. 6. who says that, if anyone gives a loan, not as the price of an Ecclesiastical benefice, but to provoke in this way the friendship of the dearer man, or to bestow a grace which he does not wish to bestow unless the other immediately gratifies him by conferring a benefice, it is probable that it is neither simony nor usury.

AND Lessius lib. 2. cap. 20. dub. 9. num. 64. asserts: If you lend to another with an agreement that he confer an Ecclesiastical benefice, it is partly usury, partly Simony; provided that agreement be of justice, otherwise if it be of friendship. But Bassaeus, under the word Usura, primo, num. 7. et 2. num. 3. seems to wish that it be Simony, not usury, if the agreement was not entered into from justice.

Whether it is USURY to receive beyond the principal any other profit whatever besides money.

I SUPPOSE first, that usury is to receive from the force of a loan, beyond the principal, some profit even estimable in money; for, as the Philosopher says lib. 4. Eth. cap. 1. et D. Bonavent. ad cap. 4. Regulae nostrae, we call money all those things whose valuation the coin measures; but to receive from the force of a loan money beyond the principal is usury, as we saw quaest. 1.; therefore also to receive something estimable in money and price. So D. Bonavent. in speculo animae, cap. 2. D. Thom. art. 2. and it is the opinion of D. Augusti in Psalm. 36. Valencia proves it quaest. 21. puncto 2. with D. Bonavent. on those words, Ioan. 2. Eiecit nummularios, and 18. Ezech. Usuram, et superabundantiam non accipias.

I SUPPOSE second, that it is not usury if someone receives something estimable in money beyond the principal, not as exacting it by the force of the loan, but as a gratuitous gift. The reason is, because if such a man did not lend, he could receive that gift; but he is not made worse off by lending. So the Doctors commonly, and the Holy Doctor supposes everywhere, with the others, in Valencia puncto 2. see what I have said on this matter, tom. 4. disp. 17. quaest. 10. ad proposit. 42. according to the decree of Alexander VII.

The QUESTION is: Whether one who excites the borrower to a remuneration is usurious.

There WERE some, as Ioannes Maior 4. dist. 15. quaest. 29. et Couar. lib. 1. var. cap. 20. num. 4. bringing forward others, who said that an agreement could be entered into without danger of usury with the borrower concerning some gift to be given back, under the title of a grateful mind, yet not under the title of the loan. The same is taught by the authors cited quaest. 2. secundo loco.

COMMONLY, however, with D. Thom. all here deny that it is licit to introduce into the agreement any remuneration of a gratuitous thing, and therefore Valencia quaest. 21. puncto 2. gravely concludes that the opinion of Maior is not to be brought into practice. The same think Lessius cap. 20. num. 58. Tanner. disp. 4. quaest. 7. num. 90. unless perhaps under the aspect of friendship (they say), when the thing is of such a kind that it is usually bestowed from gratuitous motive. So also those cited for the 3rd opinion quaestione 2.

The greater CONTROVERSY is: Whether it be licit to excite at least the borrower to some remuneration.

They ASSERT Valencia loco cit. Caietanus hic Molina tract. 2. disp. 305. Rebell. part. 2. lib. 8. quaest. 4. n. 8. Bonacina de contract. disp. 3. quaest. 3. punct. 2. n. 10. Salon. hic ad art. D. Thom. controu. 2. Diana p. p. Tract. 8. resol. 62. where he adds that it is licit to lend who would not lend, until the borrower, excited by the lender, says that he will give some gift, yet not from justice, but from fidelity. The same holds Salas Tract. de usuris, disp. 7. num. 6. who also adds that it is not usury to receive an inducement from him whom I know will not give, except out of fear lest a loan be again denied him, or lest he seem or be called ungrateful. This, however, Caietanus ad 4. Petrus Nauar. lib. 3. cap. 2. num. 211. Nauar. cap. 17. num. 219. et alii. deny.

MOREOVER, that it is not licit to insinuate this, teach Richardus in 4. dist. 15. art. 5. quaest. 5. Scotus quaest. 2. Angles quaest. de contract. mutui, art. 2. defin. 5. concl. 1. et alii.

The Holy Doctor SETS FORTH his opinion ad 6. Lucae in these words: mutuum date, nihil inde sperantes, in these words: mutuum date, nihil inde sperantes, scilicet recompensationis, Deutet. 23. Fratri autem tuo absque usura id, quo indiget, commodabis, ut benedicat tibi Dominus Deus tuus in omni opere tuo, in terra, ad quam ingredieris possidendam: idest, non quaeras retributionem de hoc ab homine, sicut usutarii, qui propter spem usurae perdunt spem vitae aeternae. Against whom the Apostle says, prima Corinth. 15. Si in hac vita tantum in Christo sperantes sumus, miserabiliores sumus omnibus hominibus. Such are the rich, who hope in riches, etc. Note that hope in a loan can be, either for a like service, or for profit: in the first way it is licit: in the second way it can be twofold, either expressed by agreement, and this is simply prohibited; because it makes one usurious. Or it is tacit, and in the heart, and in this way twofold: either as principally moving to the loan, and this likewise is prohibited, because it makes one usurious. Or it is tacit, and in the heart; and in this way twofold; either as principally moving to the loan; and this likewise is prohibited, because it is against the divine commandment: Or it is not principally moving, but as it were annexed, because, although he does not act principally for profit, such as gain, he nevertheless believes the recipient will not be ungrateful to him, and for that reason lends the more willingly. Here, however, there is not such a hope of gain as is against the divine commandment. Such is the Holy Doctor, who openly denies every agreement and inducement in the manner in which Salas says; yet, since he grants that some gift can be hoped for and desired out of gratitude, he will consequently grant also some gentle insinuation, in charming words, which nevertheless impart neither fear nor any force, but only express his own frame of mind, for instance by saying: I give to you willingly, and I give without interest, and the more willingly as I hope that you will not be ungrateful, through your kindness. This manner surely is safe.

I ASSERT therefore first, that it is not licit to make any agreement in this matter.

It is PROVED, because thus it compels, and takes away liberty from a free loan; and although, metaphysically abstracted, it might have value; yet in its modality, and in practice, it is not good. Indeed it is against the divine precept Lucae 6. by which certainty of gain from a loan is forbidden, as the Holy Doctor argues, and with him Valencia.

From which it follows that it is not licit to make an agreement that the borrower be bound to come to your mill and your workshop, even to buy at a just price. So very many, in Tanner disput. 4. quaest. 7. dub. 3. num. 88. iuxta cap. Naviganti, de usuris. The reason is, because this too is an obligation estimable by price.

I assert second, that this can be insinuated charmingly, in the manner said, with D. Bonaventure.

It is proved from the Holy Doctor. The interior and exterior act are of the same account, goodness, and malice: but the interior act from the note of a grateful mind is licit: Therefore also the exterior insinuation. It is confirmed by D. Bonavenr. in speculo animae, cap. 2. loco cit. et hic ad 6. Lucae, for the formal object of usury is profit from the force of the loan, whether explicit or implicit, desired, or in hope; but that act of insinuation has not the formal object of Usury, nor anything like it impelling and exacting: Therefore. So also Diana, and others.

Therefore the Holy Doctor concludes that one who lends does not commit mental usury from the hope of gain, provided he does not hope for gain as the price of the loan, but from the gratitude, or friendship, of the borrower; wherefore it can stand that the lender would not have lent if the hope of gain ceased, and that he does not commit mental usury; provided he intends gain from a grateful and benevolent mind, as Caspensis says sectione 1. in fine.

Whether, and what, the lender can receive by reason of danger and of lucrum cessans.

Difficulty is raised by cap. Naviganti, de usuris: where it is thus said: Naviganti, et ad nundinas eunti, certam mutuans pecuniae quantitatem, pro eo quod suscipit in se periculum recepturus aliquid ultra sortem, usurarius est censendus.

Yet it seems to me that that danger undertaken is estimable by price; and accordingly one can receive some remuneration, as Caspensis says disput. 3. sect 7. Likewise that, from lucrum cessans, one who has been asked for a loan can demand something for true lucrum cessans; as Caspensis notes sect. 10.

But it must be noted that whole gains are not to be introduced into the agreement, but with the expenses of the danger of loss extracted, etc. The reason is, because a gain in hope, the more uncertainty it has, the less it ought to be. So Rodriquez in summa, cap. 111. num. 9. Palatius de contract. lib. 4. cap. 4. Sylvester, verb. usura, 1. quaest. 19. Angel. quaest. 16. Armilla num. 3. Molina tract. 2. disp. 316. Gabriel. in 4. dist. 5. quaest. 11. Graff. part. 1. lib. 2. cap. 115. num. 20. Rebell. part. 1. lib. 8. quaest. 6. and others, as Sotus lib. 6. de Iustitia, quaest. 1. art. 3. Salon. tract. 2. quaest. 88. art. 2. controv. 9. Bassaeus, V. Usura 3. with others cited.

But because the said opinion leaves the assessment of the said gain to the judgment of a good man, scruples must be bid farewell, and a morally certain manner given.

Therefore Diana p. p. Tract. 8. resol. 64. with Lessio lib. 2. cap. 20. dub. 11. num. 96. Bonacina de contract. disp. 3. quaest. 3. puncto 4. Reginaldus tract. 2. lib. 23. cap. 8. num. 87. [hold that] there is to be remitted of lucrum cessans just as much as he himself would give to another on account of a contract of insurance, that is, as much as he would give to him who would make him secure of the whole hoped-for gain, taking upon himself the whole danger.

It is better defined from D. Bonavent. in speculo animae, cap. 2. §. secundus fructus principalis, that the burdens, dangers, etc. of both be computed, and all things reduced to a common stock, so that lender and borrower participate equally in both, and it stand with good and bad alike, and this will easily be computed. But the bonification of such lucrum cessans must be fitted to the certainty of the quantity, and to the time, so that it be made not immediately, but at the time when the cessation will occur.

Whether it be licit to lend wheat, or something else, with an agreement that it be restored in the same measure, even if the price has risen at the time of restitution.

I say first: if it is doubtful whether the thing will be worth more or less, one may lend wheat for that time, for instance the month of September, so that it be returned in the month of February. See Molina disp. 311. and Caspensis sect. 6.

Truly, if it be morally certain that the wheat, wine, etc. will be worth more at the time of payment, and the lender was not keeping wheat until that time, he cannot lend without usury wheat which is now worth less by condition, so that just so much be returned at the time when it will be worth more. So expressly D. Bonavent. in speculo animae, cap. 2. supra citato, quaest. 5. whom they follow commonly, in Caspensis sect. 6. The Holy Doctor infers the same of one who lends an old thing so as to receive a new one of greater price. The reason is, because gain is received from the loan without any foundation.

Hence you have what is to be thought: Whether it be licit for one who knows that coin is to be raised in value to give a loan, so that the coin be returned at part of the value at the time of restitution of the loan.

For it is answered negatively, with Rebellio part. 2. lib. 9. quaest. 6. num. 7. Azorio part. 3. lib. 5. cap. 7. quaestio 9. against Reginaldum Tom. 2. lib. 5. cap. 23. num. 345. Bonacinam de contract. disput. 3. quaest. 2. puncto 5. num. 17. and others cited by him, with whom Diana is pleased p. p. Tract. 8. resol. 25. who proposes the opposite title, which is the same thing: Whether, if he knows the money is to be diminished, he can bind to the present value.

The reason is, because he receives from the loan a gain which is forbidden.

But Caspensis observes sect. 5. that if in the contract of loan they do not agree that the same matter be returned, for instance gold; or the same quantity, for instance so many Ungari; the borrower cannot pretend anything besides the value.

But if it is agreed that the same matter be returned, for instance of gold, he cannot exact the increment.

But if it is agreed that the same coins be returned, even as to value, if they have increased, he says, one can bind the borrower to restore also the accretion, for instance those Ungari which would have grown of themselves with him: because the gain of the accretion ceases if he would have kept the money with himself, for instance those ungaros which would have grown of themselves with him: Therefore by reason of lucrum cessans he can bind the borrower; yet if they should decrease, the borrower will not be bound to restore the same value which it had at the time of the loan; but it suffices that he restore the same money in number, weight, and measure. And thus the agreement ought to be understood in every event.

Finally, he concludes badly with Diana, that if he knows the value of money is to be depressed, he can bind the borrower to restore the coin at the value current at the time of the contract. The reason is, because this gain does not come from the loan, but from an extrinsic cause; for thus also, according to D. Thom. quaest. 77. art. 3. ad 4. merchandise can be sold at a high price current, if you know the price is soon to be diminished.

But this comparison does not please; for in a loan the contract is made for the time of restitution, the value being changed, and accordingly for gain; nor is it excused by the fact that this happens from the extrinsic command of the Prince, for the law of the Prince is intrinsic to the coin, because it runs and has value insofar as it is coin only so far as is decreed by the Prince, and accordingly a loan is made for the time of the intrinsic accretion, which is usury, as S. Bonavent says: but a contract of sale is made only for the present; and therefore parity is denied.

Twofold gain can come from usury. One is that inducement of the loan which is exacted; the other is that which is begotten from this inducement.

Concerning the first, all Catholics agree that it is to be restored; but there is controversy as to for what cause.

The first opinion is that of Adrianus quaest. de usura, Scoti in 4. dist. 15. quaest. 3. art. 3. and Paludani ibidem, after the Gloss in cap. si quis usuram, 14. quaest. 4. who say the reason is, not because the usurer has not acquired dominion, but because he inflicted loss on the borrower by inducing him, without reasonable title, to give the accretion; Therefore he ought to repair the loss by restoring.

The true opinion, however, is that the foundation of restitution is, because the dominion of that accretion has not been transferred to the usurer. So D. Thom. quaest. 78. art. 3. Alens. 3. part. quaest. 36. memb. 4. art. 2. Altisiodor. 3. part. tract. 21. quaest. 1. Henricus quodlibet. 4. quaest. 27. Richardus in 4. dist. 15. art. 5. quaest. 5. Sylvester verb. Usura, 6. Caietanus tract. de usura, quaest. 1. Sotus lib. 6. de iust. quaest. 1. art. 4. Medina quaest. 4. de usura. Valentia disp. 5. quaest. 21. puncto 3. and almost all others.

This is the opinion of D. Bonavent. in 4. dist. 15. part. 2. art. 2. quaest. 1. ad 4. et in speculo animae, cap. 2. §. tertius fructus, etc.

It is proved from D. Bonavent. ibi: it stands in the same way with one who gives involuntarily to a robber out of fear, and with one who gives out of the necessity of coercion to the usurer; but the robber does not acquire dominion over the thing which he extorts on the way from the merchant: Therefore, since he does not receive dominion from the borrower, he has it not, unless he obtained it from the Prince; but by law he does not acquire it: Therefore. The minor is proved first from the laws cited quaest. 1. And although by civil law it is permitted him with impunity Tit. de usuris, ff. et Cod. because the borrower seems to be compelled to pay the usuries, as is evident from leg. prima, Cod. de Usuris, nevertheless now this has been taken from them in Canonical Law, especially in Clementina unica de usuris, where judges are commanded under excommunication to pass sentence against Usuries. So Valencia puncto 1. Sotus lib. 6. quaest. 1. art. 1. after D. Bonavent. as I showed Tract. de legibus, Disput. de Iure Canonico.

It is proved second, because if dominion had been transferred, the usurer would not be held by justice to restitution.

Nor is it enough that the usurer ought to give back, because a reasonable title of receiving is lacking. For a reasonable title is not necessary for a donation to be valid, as is evident, when someone out of levity donates something to a Scurra; for that Scurra is not held to restore it, just as neither a stage-player, as Valencia teaches puncto 3. with S. Bonavent. loco citato.

I add, that not only the real, or exterior, usurer, but also the mental one, is held to restore what he received beyond the principal; if he thinks, or ought to think, that the borrower gave it by the force of the loan. So it was defined in cap. Consuluit, extra de Usuris, and it is the common doctrine.

The arguments for the opinion of Scotus only prove that the borrower indeed wishes to give that gain, but compelled by necessity. Therefore that external giving does not suffice for transferring dominion, as is held in leg. Nunquam, ff. de acquirendo rerum dominio, and Valencia noted it with D. Bonavent. above.

As to the gain emerging from the accretion.

D. Thom. DISTINGUISHES that if that thing is fruitful, certainly the fruit is to be restored; but if the gain was made from a thing usurious, not fruitful, but consumable by use, as money, it is not to be restored, because it is not the fruit of the usury, but of industry: It is the common opinion, as Valencia says, except for very few, in Medina quaest. de restitutione Usurarum.

This opinion is defended by more of the Thomists. Valencia solves the arguments to the contrary.

This question supposes what I said Tract. de Charitate, disp. 18. et quae de scandalo, quaest. 4. That it is licit, in necessity, to ask from someone with right intention that which he himself will culpably do, not asking of him that he commit a sin, but only that which I am owed, as a supper from him who serves only meat on a day of fasting.

I assert first, that it is not licit to ask a money loan from a usurer under usury. So D. Thom. quaest. 78. art. 4. Nauar. cap. 17. num. 262. Couar. part. 1. §. 1. Valentia disp. 5. quaest. 21. puncto 4. for it is to cooperate in sin, indeed to induce to the act.

I assert second, that it is not licit to ask a loan from a usurer without necessity. So Valencia, citing Sylvestrum verb. usura 7. quaest. 1. Richardus 4. dist. 15. art. 5. quaest. 5. ad 2. Gabriel. ibi, quaest. 11. art. 3. dub. 14. and others, who all confess it to be a mortal sin. D. Thom. seems to think the same; nevertheless they do not admit that it is licit to ask even out of necessity under usury; against Molinam disp. 335. Sanchez lib. 3. decal. c. 8. n. 27. Caspensem disp. 5. sect. 13. who, in necessity, grant that a loan at usury can be requested.

It is proved indeed that one can ask for a loan in grave necessity, for instance from the decency of one's state, because thus he uses his own right, nor does he act formally toward fault.

But in extreme necessity it is licit to ask even under usury, if he cannot otherwise, renouncing his own Right; nor is he inviting to sin, but only exposing to the usurer himself, so that he may choose to make usury rather than homicide, allowing him to perish, as Valencia says; and in this way Nauar. cap. 17. num. 263. Sylvester verb. usura, 7. quaest. 1. are understood; for it is licit to propose the lesser evil, as I said Tract. de Charitate, Disputatione 18. quae est de scandalo, quaestione 4.