St. Alphonsus Liguori: What Is Usury? (from ‘Moral Theology’, Vol. II, Book III, Chapter III, Question VII)

Saint Alphonsus Maria Liguori
Doctor of the Church

What is Usury?

MORAL THEOLOGY, vol. II

BOOK III—TREATISE V ON THE SEVENTH COMMANDMENT OF THE DECALOGUE
CHAPTER III—ON CONTRACTS—DUBIUM VII

Exclusive English Translation

PRELIMINARY NOTES

St. Alphonsus Liguori’s treatise on usury is extremely complex. We commissioned an expert in ecclesiastical Latin to translate it for the benefit of the English-speaking public. In order to make the text more comprehensible, the translator has added explanatory comments, so-called “interpolations”, either directly into the text in brackets […] or by means of explanatory footnotes. These translator’s notes can be found at the very end of the text at the bottom of this page.

For the sake of simplification, the following things have been omitted: the introductory summary of content (which is a merely an overview of the content that follows); St. Alphonsus’ footnoted bibliographical references; and the footnoted comments of the editor, Fr. Léonard Gaudé. However, although the text of the footnotes has been omitted, the footnote numbers (superscripted) have been retained (both those of St. Alphonsus and those of Fr. Gaudé). We have retained them so that anyone interested in looking up the references to them in the Latin original text can easily do so.

KEY TO CRITICAL SIGNS 

|  | – solid vertical lines: interpolations of the editor Fr. Léonard Gaudé, C.S.s.R.

[ ] – square brackets: interpolations of the translator.

{ } – curly brackets: interpolations of the translator within square brackets.

‹‹ ›› – guillemets (double chevrons): editor Gaudé’s quotation marks.

^{a), b), c)} etc. – superscripted letters: references to editor Gaudé’s footnotes.

^{1, 2, 3} etc. – superscripted numbers: references within editor Gaudé’s citation apparatus.

What is Usury?

758. – ‹‹ Answer. It is the profit forthcoming directly from a loan, such that one making a loan in excess of the principal, i.e., the capital sum, might gain something that is capable of valuation in money, according as such profit is positively intended as a result of the loan. — That is clearly wicked and a grave sin against human and divine law, since one making a loan obtains a profit from a thing already no longer his own. The reason is, the thing on loan passes over to the absolute ownership of the borrower, as is clear from the definition [of a loan, mutuum, at no. 754 under DUBIUM VI]. Also, the general rule is: Every agreement or exaction, or burden of responsibility added to a loan, except that which is proper and intrinsic to it, renders a contract usurious. — Martino Bonacina,¹ Juan Cardinal de Lugo. ››

759. –  It is certain that usury is unlawful also by the natural law, and nothing in excess of the principal can be exacted for the use of a thing loaned, as the theologians and jurists commonly affirm along with St. Thomas,² in conformity with the [Decretal [*]] chapter [iv, beginning with the words] Super eo, [under the title] On Usury.

            The reason is that, as St. Thomas teaches,³ although in a thing that is not consumed in its use, as in a house, [or] a horse, the use may be distinguished from the thing: but in a thing with a consumable use, as in wine, wheat, money, a use of the thing distinct from absolute ownership is not present, since the use of the thing is the very consumption of the thing. And, on that account, in a loan, by its nature, the absolute ownership of a thing is transferred to the borrower. If therefore something should be exacted for the use of a consumable thing, it would in fact be exacted unjustly, affirms St. Thomas, and indeed everyone, because it would be exacted for a thing that does not exist.

            However, a certain modern writer [Nicholaus Broedersen], in a book recently published, ^a) industriously attempted to prove that money of itself is not sterile and unfruitful, in the same way as are other things consumable in use, since according to the common agreement of men, as he maintains, we may observe that very many gains arise from money. From this, he concludes, prescinding from the just titles [†] of risk, financial loss etc. (about which we shall speak below), that something in excess of the principal can be lawfully exacted from a loan of money, provided that the profit be within bounds and provided that the borrower be wealthy and apply that money to increasing his own goods. — But this modern opinion has been deservedly forbidden by the Supreme Pontiff Benedict XIV in the encyclical letter issued in the year 1745, which begins [with the words] Vix pervenit. The firmly established principle is that the entire profit that is received from money arises, not from the money itself, which cannot bear fruit since it is utterly sterile, but arises from nothing but the activity of men. And I cannot, in view of the fact that my money will profit another by reason of his activity, exact from him something in excess of the principal. And, in an equal degree, if I sell a thing that will be very useful to a buyer by reason of his activity, I cannot receive, owing to this, something beyond the just price of the thing. The principle is clear of itself, and does not stand in need of another explanation.

However, in opposition to that is the objection that God permitted (e.g., Deut 28:12) the Jews to lend on interest to foreigners. St. Thomas, as quoted in the Salmanticenses,¹ answers that at that time God did not permit usury, but he allowed them, in this way, to take the goods of the Gentiles, which the Lord bestowed upon the Jews. ^b) — Read Father Daniello Concina, who fully and very learnedly refuted this false opinion in his own book.

            However, at this point, three condemned propositions must be noted.

            The first, from Innocent XI, no. 41, said: Since money at hand is of greater value than money to be disbursed and [since] there is no one who does not value present money more than future [money], a creditor can exact from the borrower something beyond the principal and by that title be excused from usury.

            The second, from the same Innocent, no. 42: When something is exacted beyond the principal, it is not usury as something owed in virtue of good will and gratitude, but only if it be exacted as something owed in virtue of justice.

            The third, from Alexander VII, no. 42: It is lawful for one making a loan to exact something beyond the principal, if he should pledge himself not to exact repayment of the principal until a fixed time.

760. – But there is a question: whether on the basis of an obligation[‡] (under which the one making the loan might place himself) of not exacting repayment of the loan except after a considerable time, he may be able to exact something in excess of the principal amount, even if no disadvantage should come about for him by reason of the postponement? —There are at hand three opinions:

            The first common opinion says no; Leonardus Lessius,² Domenico Viva,³ Paul Laymann,⁴ [and] Juan Cardinal de Lugo⁵ hold this opinion. [de Lugo] calls the directly opposed opinion most false and commonly reproved by others. — The reason is that such an obligation is intrinsically connected to a loan that is not immediately claimed back. Therefore, just as something cannot be exacted from the fact that payment is expected on the basis of some time, so neither [may it be exacted] on the basis of so-much time; otherwise, they say, usury in such a form could easily be concealed oftentimes by not exacting it on the basis of the loan but on the basis of the obligation of expecting payment. — And the condemnation of the second asserted proposition seems to be favorable this [opinion].

            The second opinion says that, although in a loan there may be an obligation of expecting payment by some time, nevertheless, when the obligation is about not exacting repayment except after a considerable time, say a space of three years, at that time, since [the obligation] is not intrinsic to the loan, something can lawfully be exacted. So [say] Juan de Medina⁶, Marcus Serra, Pedro de Ledesma, as cited in the Salmanticenses⁷; and in that last cited work Juan Gil Trullench, Juan Enríquez ^a), and also Bassaeus [Eloi de la Bassée] think [the opinion] is probable, and Patritius Sporer¹ thinks it not improbable. — And this opinion truly does not seem to lack its own probability. For if he who is pledged to make a loan under a long time period can lawfully exact something (as the Doctors supporting Luis de Molina more commonly teach, as quoted in Domenico Viva²), [then] why cannot he who is pledged not to exact repayment of his [loan] except after a time period of long duration? See what is to be said just below.

            The third opinion, a little unlike the second (which the Salmanticenses³ hold along with Domingo Báñez, Juan Martínez de Prado, Pedro de Aragón, and Juan Caramuel y Lobkowitz), says that although by adhering to the first opinion, it may be usury to exact something without qualification for a time period, nonetheless, since it is morally impossible that by waiting for a considerable time the lender should not suffer some risk, financial loss, or disadvantage, or else at least he should not be prevented from exercising some act of generosity or another becoming service; therefore, he can receive and negotiate something in excess of the principal.

            But you will say 1^st: The obligation of waiting for some period of time exists in any loan at all. Wherefore, just as in a loan for 15 days, the obligation of not exacting payment within the 15 days is present, so also in a loan for three years there is the obligation of not exacting payment for three years, because then that obligation of waiting for three years is intrinsic to such a loan; otherwise the lender might sell his goods. Nor can such obligation of waiting for so much time be said to be of value for a money price, since it does not arise out of justice, but from the same generosity from which the benefit of lending arises. — But it can be answered: Any loan at all has a certain intrinsic obligation of waiting for some normal time period; nevertheless, in a particular loan with an agreement of waiting for an exceptional time period, such an obligation is not intrinsic but wholly extrinsic; and therefore [the obligation] does arise from generosity but from justice, owing to the agreement that according to justice it binds [the lender] to wait for so great a time period. Hence, if the one making the loan takes something for such an obligation, he takes it properly, not owing to the advantage of which he is deprived, but owing to the burden imposed upon him by the agreement. That burden assuredly is of capable of valuation by a money price, as Juan Cardinal de Lugo⁴ himself acknowledges, along with others.

            You will say 2^nd: Does the third proscribed proposition, cited just above, from which it seems altogether forbidden that something be exacted for the obligation of waiting until a fixed time, stand as an impediment? I say the answer is: The said proposition was rightly condemned because, by those excessively general words, a wait of any time at all was included, even that which is intrinsic to the loan. However, in that proposition, it is not forbidden that something be exacted for the obligation of waiting for an exceptional time: that obligation is extrinsic to the loan.

            And here it must be noted incidentally that some are led to reprove all opinions that have some similarity with the condemned propositions, foolishly thinking that they are in general proscribed such that they allow no exception or just interpretation. That, in reality, is against the nature of the condemned propositions; for, according to the assent of all Doctors, all opinions are not to be rejected with eyes closed unless they are contained expressly or virtually in the proscribed [propositions]. In other respects, speaking according to rule, condemned propositions are to be understood as they lie and in a strict sense, and also [in the sense] intended by their authors. — Except that certain opinions (insofar as it can be said that it is this [opinion] about which we speak) have been condemned because they spoke too generally; and, therefore, they must not be extended to all particular cases, which are distinguished on account of some circumstance of moment.

761. – ‹‹Wherefore, you will come to the determination: 1^st.  One practicing such usury sins gravely ex genere suo [lit., “by its very nature”], although it may be mental only without external agreement. For usury is said to be mental when someone has the intention of receiving something from the loan in excess of the principal, even if he does not express it externally to the agreement. Just as usury is said to be real or exterior when someone expresses that intention through some agreement. — That at times is made only implicitly in some contract, and is called palliated [lit., “cloaked”] usury, viz., when contracting parties put forward another contract of purchase, of leasing, etc. in which something still really usurious is brought into play. See the examples in the work of Francisco de Toledo.¹ ››

            This is not the term for mental usury that remains in the mind alone, without the giving of a loan, for this does not bind to any restitution. However, it becomes the term for mental usury that is connected with the loan but without an express or tacit agreement of gaining something in excess of the principal, in comparison with the distinction of real usury, which arises from the agreement.

           One asks 1^st. When may the obligation of restitution arise from this mental usury?

           We say 1^st: When mental usury is on the part of both [parties], such that the one making the loan receives a profit as the price of the loan and in the same way the borrower also pays such [price], then certainly the profit must be given back. — We say 2^nd: When mental usury is on the part of the borrower alone, who gives a profit as the money price, and the lender receives it in good faith as given gratuitously, then the latter is not bound to give it back as a matter of unjust acceptance, but only as a matter of the acceptance of the thing, since he is aware the borrower has not offered [it] gratuitously— We say 3^rd: When, on the other hand, the usury is only on the part of the one making the loan, inasmuch as the borrower has given [it] gratuitously and the one making the loan received it as the money price, then, if he is aware that the former has given generously, he can keep [it].

           One asks 2^nd. In doubt as to whether the borrower has given something beyond the principal gratuitously, or as the money price of the loan, can the lender retain that [added amount]?

           It is certain that one making the loan can lawfully receive from a borrower generous gifts, as everyone teaches along with St. Thomas.² — But if there be a doubt whether the borrower gave gratuitously or not, Leonardus Lessius ^a) and the Salmanticenses³ answer that if one making a loan received the gift in good faith, he can retain it when the doubt occurs subsequently; but [it is] otherwise if he received it simultaneously with the doubt.

           But what if he received it with positive doubt, or with the probability of a genuine gift? — Using a probable opinion, Patritius Sporer⁴ allows he can keep it. — But commonly and correctly Leonardus Lessius,⁵ Daniello Concina,⁶ the continuator of (Honoré) Tournély^b); and the Salmanticenses,^b) along with Domingo de Soto,^c) Martino Bonacina,^b) Diego de Covarrubias y Leyva, ^b) Juan Martínez de Prado,^c) Pedro de Aragón,^c) etc. say no. The reason is that with, such a doubt, the lender cannot initiate possession of a res aliena [lit., “property owned by another”]. Likewise, [the reason is] that in doubt the borrower is presumed according to rule to have given through force, since men reluctantly bestow their own [goods] gratuitously, as Patritius Sporer⁷ himself acknowledges.

           Additionally, in this doubt one must pay deference to that side for which there is a stronger presumption. Hence, the Salmanticenses,⁸ Patritius Sporer,⁹ and Leonardus Lessius,¹⁰ say the borrower must be morally presumed to have, for a fact, given if he not be poor or miserly, or did not give after being urged on by reason of fear, and not out of the vexation or the demand of the one making the loan. The Salmanticenses¹ along with St. Antoninus of Florence say the same thing, supposing that the borrower maintains in writing that he had given generously, unless it is apparent that he had written in fraud as to usury. — But the opposite is presumed with the Salmanticenses,² if it was the case that the one making the loan gave an indication before the gift that he wanted something as owed to himself, or if the borrower be poor or unaccustomed to make a gift, or if he pay it before the repayment of the loan. The reason is that then it is easily presumed that he is making a gift lest he be forced to repay the loan rapidly. Martín de Azpilcueta Navarro and Juan de Medina, ^d) quoted in the Salmanticenses,³ opposing Juan de Dicastillo, ^e) say that the same thing is reasonably supposed if the borrower received the loan for pressing needs, because such necessity removes or weakens the presumption that he made a gift altogether gratuitously.

762. – ‹‹ 2: It is not usury if the one making the loan should intend nothing as the price, but only would hope for something out of gratitude, and, with that in mind, something would be given to him; that is lawful even if he should intend that as the chief purpose. —  Luis de Molina⁴ [and] Juan Cardinal de Lugo.⁵ »

           One asks 1^st: Whether it is lawful to give a loan in expectation of a profit?

           St. Thomas⁶ distinguishes [the question] in the following way: If someone, in virtue of money loaned, should expect or exact, as if in accordance with the obligation of a tacit or express agreement, the compensation of a gift of service [real remuneration] or of a gift of the tongue [oral remuneration], it is just as if he were to expect or exact a gift of the hand [manual labor] [§]…But if the gift of service or of the tongue be presented not as if arising from obligatio rei [the obligation of a thing by the tie of a real security] but in virtue of good will, which does not fall under a valuation of money, it is proper to receive, exact, and expect this. — Hence, Tommaso de Vio (Cajetan), Fernando Castro Palao, Juan Martínez de Prado, Juan Gil Trullench, and Enrique de Villalobos, quoted in the Salmanticenses,⁷ conclude (1^st) that in the forum of the conscience there is not an indication of mental usury, because someone would not lend if he believed the borrower would render no compensation. The same⁸ Tommaso de Vio (Cajetan), Juan Martínez de Prado, along with Juan Gil Trullench, Marcus Serra, and Miguel Bartolomé Salón Ferrer, conclude (2^nd) that one making a loan can lawfully also disclose to the borrower such an expectation; but, all the same, the Salmanticenses⁹ along with Juan Cardinal de Lugo,^a) etc., properly take notice that this does not lack a strong suspicion of usury (in accordance with what was said in On Simony, no. 51, see [the sentence beginning with] Hinc, at the end [in of the treatise “On the First Commandment of the Decalogue” in Liguori’s Theologia Moralis]). — Accordingly, the Salmanticenses ¹⁰ and Domenico Viva,^b) correctly say that those making a loan in such a manner must be normally supposed to be usurers.

           However, Hermann Busenbaum (as above), the Salmanticenses,¹¹ and Leonardus Lessius [Lenaert Leys]¹² along with Martín de Azpilcueta Navarro according to Domingo de Soto, think that it is not unlawful for one making a loan to grant a loan with expectation of profit, even if such expectation be the chief stimulus for making the loan. ^c) — But rather more correctly, I suppose along with Father Daniello Concina¹³ that this is wholly unlawful ^d) in accordance with the text of Luke 6:35, where it is commanded: Lend, hoping for nothing thereby. If this text is not extended at least with regard to this chief hope, I know not in what other case it can be extended. However, the reason for our opinion is that if it is not lawful to lend chiefly with a view to a profit to be received from the loan, and it is also not permitted to lend chiefly with a view to an expectation of profit.

           This is confirmed in every respect by the example of simony, which in fact marches on equal footing with usury. For, with respect to simony, we have already proved (in no. 51, see [the sentence beginning with] Caeterum, and in no. 54 [in the treatise “On the First Commandment of the Decalogue” of Liguori’s Theologia Moralis]) that if someone gives a temporal [good] in sole consideration of a spiritual thing, then he is judged to have, at least virtually, a simoniacal intention, as is clear from the condemned proposition 46 of Innocent XI, which said that it is not simony give a temporal good for a spiritual thing, even if the temporal good be the chief stimulus for giving the spiritual good.— The same thing must be said with regard to a loan. For when a loan is given chiefly with a view to expectation of profit, then the very hoped-for profit, since it is the chief stimulus of making the loan, is virtually converted into the price of the loan. This is clearly inferred from [the Decretal] chapter x [beginning with the word] Consuluit, [under the title] On Usury, where it is treated in this manner: Your Devotedness [an ancient honorific title dating from the late Empire] has asked Our advice whether he ought to be judged as a usurer who (not otherwise intending to hand over [his goods] by way of a loan) entrusts money on loan with this intention: that, any agreement whatever being inoperative, it is lawful that he still may receive more than the principal… But because what must be held in these cases is plainly discerned from Luke’s Gospel, wherein it is said: Lend, hoping for nothing thereby, men of this sort must be judged to act wickedly on the basis of the intention of profit that they have, since all usury…is forbidden in the law, and they must be effectually led by persuasion in the judgment of souls to restore those things that were received in such a manner.” Hence St. Raymond of Peñafort wisely said: He who has made a loan of money under such expectation, whatever he receives afterwards beyond the principal (even something offered gratuitously) is usury.

           Moreover, Daniello Concina² aptly says, that by no means does one making a loan sin, who lends in order to try to obtain the goodwill of another, even if this goodwill be the chief stimulus of making the loan, because the gratuitous benefit of itself pertains to winning over a reciprocal goodwill. Better still, I add, that even if secondarily some profit be hoped for, such that the profit be the inciting reason to make the loan (but not if, failing this expectation, the loan would not be given, because then at least a usurious frame of mind is presumed). — Thus, according to St. Thomas,³ where he says: If (one making a loan)…should receive something of this sort, not as if by reason of some tacit or express obligation, but as a gratuitous thing given, he does not sin, because, even before he would have loaned the money, he was lawfully able to receive some gratuitous thing given, and he is not rendered in a worse legal position through the thing that he loaned. But in fact, it is lawful to exact for a loan compensation of the things that are not measured by money, say, the goodwill and love of him who [**] made the loan, or something of this kind. And⁴ he says that it is lawful for the one making a loan even to expect ^e)  a gift of this kind, provided that (it must be understood, as we have said) this expectation not be the final cause of the loan; for, speaking albeit speculatively, it may be different to expect a profit as a matter of good will and to expect as a matter of justice, but in practice these [distinctions] are very easily confused.

763. – One asks 2^nd: Whether one making a loan can retain that which the borrower gave not out of genuine gratitude, but out of a fear lest another borrowing be denied to him in the future, or lest he be considered ungrateful?

           Tommaso de Vio (Cajetan),^a) Luis de Molina, Martín de Azpilcueta Navarro, and others, quoted in the work of Antonio Diana, say no, along with Domenico Viva,⁵ who believes the opposite opinion to be speculatively, not practically probable. — But Paul Laymann, ^b) Juan Cardinal de Lugo, Fernando Castro Palao, Domingo de Soto, ^b) Antonio Diana ^c) and Juan de Salas, quoted in [the Salmanticenses,¹ say yes. According to St. Thomas and in the common [opinion], the reason is that, for usury, it is required that [the profit] be given by force of an agreement, or as owed as a matter of justice; however, [a profit] being given out of such a fear does not amount to its being given as the price [of the loan], for the law of a loan does not forbid that the other [party] be unwilling to appear ungrateful.

           However, although at first the Salmanticenses say that such an act of liberality [donationem] is with difficulty not [called] usury, since very rarely must [the act] be presumed [to be] genuinely voluntary, nevertheless, in reality, they later attach themselves to the second opinion, saying that if the act of liberality were truly spontaneous, [the gift] can be rightfully retained. For even if [the act of liberality] be otherwise unwilling, by no means, in fact, does such unwillingness make [the act of liberality] more offensive to moral standards, since it does not issue from extrinsic coercing thing but from intrinsic necessity, or [from] the will of the borrower himself. — Thus the Salmanticenses²along with Marcus Serra,^d) Juan Gil Trullench, ^e) Juan Martínez de Prado, and Domingo de Soto, ^f) who notes that one must always decide whether the one making the loan receives [a profit] owing to friendship or owing to the loan.

764. – ‹‹ 3^rd: But if, in spite of what has been said, he should realize that something had been given to him, not gratuitously, as he thought, but as something owed in virtue of the loan, he would be bound to restore the amount therewith he had become richer. So maintain Manoel de Sá³ [and] Juan Cardinal de Lugo. ⁴››

           Note here the proposition 42 condemned by Innocent XI, which said: When something is exacted beyond the principal amount, it is not usury as something owed as a matter of good will and gratitude, but only if it be exacted as something owed as a matter of justice. — Domenico Viva⁵ correctly observes that the condemnation falls on the words owed as a matter of gratitude, for a borrower is not bound to satisfy by means of his own goods an obligation of gratitude, since he can make satisfaction by praising the one making the loan, by praying for him, etc.

           However, [as to the question] whether an antidoral obligation [natural obligation to repay arising from the very giving of a benefit], or [obligation] of gratitude, can ever be reduced to an agreement, [I say that] in every respect the answer must be no, as is clearly inferred from the aforesaid proposition; for that which is reduced to an agreement is already said to be owed. See what was said in On Simony, no. 53 [in the treatise “On the First Commandment of the Decalogue” of Liguori’s Theologia Moralis].

           ‹‹ 4^th: It is not usury to lend for the sake of trying to obtain another’s friendship, and thereby hope for a favor further on, because friendship is not valued by a money price. — Juan Cardinal de Lugo.⁶

           ‹‹ 5^th: Nevertheless, an agreement about obtaining from a borrower (or his effort) some favor is unlawful and usurious. Thus say in common Luis de Molina,⁷ Leonardus Lessius,^a) Juan de Salas,^b) [and] Juan Cardinal de Lugo,¹ ›› | commonly along with Domenico Viva, ^c) and the Salmanticenses ^a) | ‹‹in opposition to Martín de Azpilcueta. ^d) Notwithstanding, Juan de Salas ^e) excuses him who loans something with an agreement that immediately furnishes some benefit out of gratitude. See Juan Gil Trullench.² ››

           To be sure, he is excused who makes a loan with an agreement that the other repay on the present occasion; [it is] otherwise for the future. See what was said in On Simony, no. 57 [in the treatise “On the First Commandment of the Decalogue” of Liguori’s Theologia Moralis] and what will be said [herein] at no. 781, in accordance with St. Thomas.

           ‹‹ 6^th. An agreement that an ecclesiastical benefice be conferred by the borrower is usury (and simony) because he is forced to assume a new burden.

           ‹‹ 7^th. It is not usury when someone, unable to recover his own goods, should make a loan so that his goods be restored to him, or that he not be unjustly harmed. The reason is that these things were already previously owed according to law, and thus he is not making a profit or imposing a new obligation. Martino Bonacina³, in accordance with Juan Azor, Reginald of Piperno, etc.›› | See the things said about simony, from no. 98 [in the treatise “On the First Commandment of the Decalogue” of Liguori’s Theologia Moralis], which are also said about a loan. |

765. – ‹‹8^th: And it is not usury to exact something owing to the risk of recovery, the difficulties, or the expenses that will occur or are feared in recovering the principal, because the fact that someone commits himself to such risk and difficulty can be valuated with a money price. Martino Bonacina⁴. — Paul Laymann⁵ teaches (in accordance with Juan de Medina ^a) Gregorio de Valencia, Luis de Molina, [and] Leonardus Lessius,^a) etc.) that it is nevertheless necessary that this risk, etc. be expressly or tacitly entered into the agreement. Juan Cardinal de Lugo ^a)  states likewise.

           And thus are lawful the Montes Pietatis [††] [a mons pietatis, It. monte di pietà = lit., “a towering money-heap of compassion,” hence “a compassionate fund”], as they call [them], that is, treasures, so to speak, which are stored up by the government or the ruler as a place of refuge for the poor, so that from them loans may be made gratuitously to the poor, but yet in such a way that they return a little for the expenses that occur for the functionaries and for the maintenance of such Montes. See Francisco de Toledo.⁶ Leonardus Lessius, ⁷ [and] Martino Bonacina. ⁸ ››

           An important question is at stake: Whether, owing to the risk of losing the principal, it be lawful to exact something in excess of the principal amount?

           The first opinion says no. Martín de Azpilcueta Navarro ⁹ Domingo de Soto,¹⁰ Francisco de Toledo¹¹ Noël Alexandre,¹² [and] François Genet ^b) hold that [opinion]. — We shall explain the reasons for this opinion below in the objections to the second opinion, which we follow [next].

           The second opinion, then, the more probable and sufficiently common — which, jointly with Hermann Busenbaum (as above), Leonardus Lessius,¹³ François Du Bois,¹⁴ Sylvester Mazzolini (Silvestro Mazzolini da Prierio),¹⁵the continuator of (Honoré) Tournély,¹⁶ Martin Wigandt,¹⁷ Prospero Fagnani,¹⁸ the Petrocorensis,^c) [‡‡] Jean Cabassut,¹⁹ Juan Cardinal de Lugo,²⁰  [and] the Salmanticenses²¹ (in company with Luis de Molina, Gregorio de Valencia, Miguel Bartolomé Salón Ferrer, Juan Gil Trullench and countless others) hold—affirms that a moderate amount can be received lawfully in view of the risk of the principal. — Provided that ^d) (1^st)  the risk of losing the principal be real and exceptional (and indeed not common), or [there is a risk] of not recovering it without great expense and efforts; I mean if a loan be given to a man of doubtful [good] faith or to a poor man (take this to mean, if you should give him a loan in addition to the fact that you are absolutely bound by precept to make him a loan in order to relieve his present lack of means). — Provided that (2^nd) that you do not refuse collateral security of the principal, if it be offered through a pledge or suretyship, and that you do not compel the borrower to transact such a risk, as Leonardus Lessius¹ and the Salmanticences² rightly note. Apart from these [provisions], you can fittingly exact from the borrower that which the other might give you for collateral security of the principal, even if the loan be shortly returned to you in its entirety. The reason [is] that exposing you to such risk is, in fact, capable of valuation by a money price.

           This is confirmed, 1^st: From the [Fifth] Lateran Council,³ under Leo X, where, with reference to usury, any profit at all from something unfruitful is condemned, when, for all that, the title of labor, or expense or risk has been removed. The actual words of the Council [are]: [the proper meaning of usury is] When plainly from the use of a thing that does not sprout forth, a profit and a yield are pursued to be acquired with no labor, no expense, or no risk.

           It is confirmed, 2^nd: According to the teaching of St. Thomas⁴ (quoted by the Petrocorensis⁶), where the holy Doctor affirms as follows: Things of the same species…that are possessed beyond the scope of risk are valued more that the same things existing amid risk; and, therefore, compensation is directed toward the nature of the thing, which on account of the risk is determined to be of more or less worth.

           It is confirmed, 3^rd: According to the declaration of the Sacred Congregation for the Propagation of the Faith, to which Jean Cabassut,⁶ the continuator of (Honoré) Tournély,⁷ and Louis Bancel⁸ refer. – The case was this: Among the Chinese, it had been established by law that 30 percent might be received in a loan without regard for [the titles of] damnum emergens [lit., “actual or direct financial loss”] or lucrum cessans [lit., “lost profit”] [§§]: and because there was the risk of the debtors’ flight in recovering the principal, or of late payment, or of demanding repayment of the money with the burden of having recourse to judges, it was asked whether this [30% interest rate] might be lawful. The Sacred Congregation replied, with the approval of Innocent X (and this declaration was printed at Rome in the year 1645): | The Sacred Congregation of the Cardinals of the Holy Roman Church ^e) approved [the declaration]. | By reason of the loan, nothing must be received immediately and without qualification beyond the principal amount. But if [those making the loan] should receive something owing to probably imminent risk, as in the case [under examination], they must not be disturbed, provided that the quality of the risk and the probability of the same be taken into account, and with a comparative relation having been observed between the risk and that which is taken. — Afterwards the Pontiff commanded all missionaries under [pain of] excommunication latae sententiae [lit. “of the sentence having been passed,” i.e., in force immediately upon violation] to observe all [elements] of this decree and to make use of them.

           It is of no consequence to say that this declaration is not certain, as Henry of St. Ignatius^f) affirms in the continuator of (Honoré) Tournély ^f) To be sure, Tomás Hurtado⁹ brings forward a copy of this declaration authenticated by an apostolic notary. — Next, the same Henry [of St. Ignatius] alleges that the aforesaid declaration is not approbative, but only tolerative. But the reply [to this] is that the Sacred Congregation says in the same [cited ruling] that lenders must not be disturbed, provided that…the probability | of the risk | be taken into account; those words surely indicate not simple tolerance, but positive permission. Beyond this fact, the Pontiff, as we have said, positively commanded observance of this decree; consequently, (the continuator of (Honoré) Tournély rightly affirms), this [viz., Henry’s] legal ground for judicial procedure [ratio agendi] would have been strange supposing that the Pontiff had commanded observance of the decree, since he would have been convinced of the fact, or were in doubt that this is usury.— Finally, the aforesaid Henry [of Ignatius] alleges that it applies in an extraordinary case of by far greater risk than [in one] of common risk. The reply is that the Sacred Congregation gave a decision in the matter of the risks about which there was an inquiry, namely, of flight, late payment, and difficulty of enforcing payment legally; those risks in the class of extrinsic [risks] are not extraordinary [risks].

           Objection 1: A thief, when he restores something taken away, is not obliged to restore the money price of risk; therefore, by so much the less is a borrower obliged to restore it. For if the risk of losing the principal is not a title that binds a thief to pay something beyond the principal to the owner, for the lender it will also not be a just title of enforcing payment legally, owing to the fact that a nudum pactum [lit., “bare or formless or empty agreement”] does not provide title.

           But in reply: No one doubts that by reason of damnum emergens [lit., “actual or direct financial loss”] one making a loan can exact something beyond the principal; and yet, if the financial loss is not reduced to an agreement, he can exact nothing because an agreement is lacking (as we shall say in no. 769, [in the paragraph beginning with the words] But there is a doubt). Therefore, damnum emergens lit., “actual or direct financial loss”] is also not a title for receiving [something] beyond the principal, but properly it is the title of justly reducing a demand to an agreement. Thus equally, risk without an agreement is not a title of collecting something beyond the principal, but it is properly the title of justly making an agreement when the one making a loan, in order to oblige the other, assumes upon himself a burden of risk, which is capable of valuation by a money price. A thief, however, because no agreement occurred between him and the owner, is therefore obliged to restore nothing beyond the principal owing to risk. — Wherefore, in conclusion, the rule is settled that, in order for the lender be able to exact something beyond the principal, the requirement is that a just agreement occur; however, in order that the agreement be just, the requirement is that the lender assume upon himself some extraordinary burden. Therefore, in the same way as he can justly make a contract to exact something by reason of a fixed damnum emergens, so also [can he justly contract] to exact something (even if less) by reason of probable financial loss, as for instance the risk of financial loss. Therefore, the continuator of (Honoré) Tournély¹ properly says that a loan at risk cannot be sold for as much as a secure loan.

           Objection 2 [is founded upon] the text in [the Decretal] chapter xix Naviganti, [under the title] On Usury, where it says as follows: A man making a loan of a fixed amount of money to one traveling by ship or to one going to a market so as to receive something beyond the principal in view of the fact that he undertakes upon himself a risk, must be judged [to be] a usurer.

           The response to this text is in many forms. — In the 1^st place, Paul Laymann, Pedro Barbosa, Fernando Castro Palao, [and] Jean Cabassut,² reply that a [transcriptional] error has crept into [the text of the Decretal], and that the particle non [“not”] has been omitted. Tournély says that this interpretation is quite possible from the context of the aforesaid canon, where, when thereupon a discussion immediately takes place about [a man] lending grain or wine who exacts something on account of the uncertainty of loss in view of the time period of recovery, [the following sentence] is subjoined: That man also who gives ten solidi [a late Roman coin and a medieval unit of account] so that at some other time the equivalent number of measures of grain or oil, etc. be repaid to him, ought not, on account of this, be thought of as a usurer. Therefore, the same thing said [about this man’s innocence of usury] is supposed for the first case, since the particle quoque [“also”] sufficiently points this out; otherwise (affirms the continuator of (Honoré) Tournély³) the Pontiff instead ought to have added the particle sed [“but”], if he had intended to declare that contract usurious. — In the second place the answer, in company with Prospero Fagnani⁴ [and] the Salmanticenses,⁵ [is] that the aforesaid text is understood only for the external forum, where such a contract is determined to be regarded as usurious; and therefore, in that [canon] it is not said that the man is usurious, but that he must be judged [to be] a usurer. Just as in like manner, says Prospero Fagnani, if a bishop receives a gratuitous present from someone, on whom he later confers a benefice, he will be judged a simoniac in the external forum, but he will certainly not be such in [his] conscience. In the third place, the answer, jointly with the same Jean Cabassut ^g) and likewise Juan Cardinal de Lugo,⁶ Leonardus Lessius,¹ the Salmanticenses² in company with Paul Laymann, ^h) Fernando Castro Palao, Diego de Covarrubias y Leyva, Pedro de Tapia, and Enrique de Villalobos, and others in common, [is] that the text is to be understood by way of a case in which the loan-giver, by force of the loan itself, would bind the borrower to undertake a contract of collateral security; or in a case in which (as the Petrpcoresnsis³ supposes) the loan-giver intends absolutely to profit from the loan such that otherwise he would not make the loan. And St. Thomas, too, distinctly supposes this, as quoted in the same Petrocorensis, ⁱ⁾ where he says: But if | the loan-giver | does not expect a profit in virtue of the loan, but seeks for himself to be compensated as to the burden of risk that he takes upon himself, to such an extent that he would be prepared to lend money gratuitously if indeed he would not assume such a risk upon himself, then he certainly does not sin.

           However, with respect to the Montes pietatis, which Hermann Busenbaum (as above) mentioned, one must take notice that these have been approved by the Lateran Council under Leo X under this restriction: [The Council] only grants an addition [to the principal] for the sole expenses of the functionaries and of other things pertaining to the upkeep of those [institutions], as is stated previously, for security against loss of those things as far as it goes beyond the principal and without the profit of same Montes.

           Hence Father Daniello Concina⁴ and the continuator of (Honoré) Tournély,⁵ remark that three conditions are required in order that such Montes be licitly erected: 1^st, that the money be delivered to the poor within the limit of a fixed amount for a determined time of repayment. 2^nd , that a pledge be furnished by the debtors, and that it be kept by the functionaries, and at a time appointed beforehand be sold at public auction, and after having held back the money price that is owed to the Mons, the rest be returned to the owner of the pledge, or [be given] to the poor (if [the owner] cannot be found), or to the same Mons, as Constantino Roncaglia⁶ says, which even Daniello Concina⁷allows, if the Mons be poor and pressed ^j) by the need to assist the poor, as Sixtus V and Clement X conceded to some Montes.

           Here, however, it must be noted with Daniello Concina⁸ that the wealthy, who without need receive a loan from a Mons so that they otherwise make a profit, commit sin; and, therefore, they are obliged to return the money then and there. I would say, however, that this must be understood if it was the case that the Mons were poor, because then it would run short in the assistance of the poor, for which these Montes have been established. —However, Zaccaria Pasqualigo (quoted in Daniello Concina⁹) adduces certain letters of Paul III, in which it is asserted that some annual addition to the principal can be lawfully granted to those who deposit uninvested [otiosam] money in the aforesaid Montes. But Pietro Ballerini¹⁰ plainly and rightly proves conclusively that these letters [are] spurious. Nevertheless, Father Daniello Concina¹¹ brings in certain letters of the same Paul III, of Julius III, and of Pius V, in which [the addition to principal] is conceded, but with these restrictions, that those depositing money do it with a zeal for charity in relation to the poor and [that] they have otherwise available assets from which they might be able to profit lawfully.

           But [as to the question] whether it is lawful also to establish Montes with private means of this kind? Leonardus Lessius¹² says yes.

766. – ‹‹ 9^th. And it is not usury if, fearing the borrower’s difficulty or deceit in repaying within the established time period, you make an agreement that, if he does should not pay at that time, he give something above the capital sum in place of a penalty [clause for non-fulfillment]; that penalty is lawfully exacted, provided that it not be made with an intention other than that the borrower be so bound, in a manner of speaking, lest by his own fault he fail to live up to [the terms of the loan]. Wherefore, if, apart from his own fault, the borrower should not be able to pay, it will not be lawful to exact a penalty, as Francisco de Toledo¹³ holds. — He affirms that it is a plain mark of bad intention if you should choose to be paid at an established time in order that you take in a penalty; and, also, it would simply be usury if, knowing for certain that the other will not be able to pay, you should still burden [him] with such a penalty. — See Martino Bonacina¹, Luis de Molina,² [and] Leonardus Lessius.³ ››

           An agreement [containing] a poena conventionalis [= a penalty agreed upon by both parties in order to conclude the contract] is therefore lawful in a loan, as Juan Cardinal de Lugo,⁴ Domingo de Soto,⁵ the continuator of (Honoré) Tournély⁶ along with Henry of St. Ignatius, Apollonius Holzmann,⁷ Martin Wigandt,⁸ Jean Cabassut,⁹ Leonardus Lessius,¹⁰ Anacletus (Johann Georg) Reiffenstuel,¹¹ and the Salmanticenses¹² jointly hold with John Duns Scotus, Juan Gil Trullench, Enrique de Villalobos, etc. — However, the reason why this agreement is lawful is that such a penalty is added so that consideration be given to the force of the contract and [so that] the negligence of the borrower be deterred.

           But to add this agreement lawfully as a stipulation [apponendum], the requirement is 1^st, that the debtor’s lateness be notable and culpable. — 2^nd: that a willful intention [animus] of making a profit by means of the added penalty be absent; that willful intention is presumed if the debtor were burdened to make repayment for a time period in which it is known that he cannot pay. So [say], jointly with Hermann Busenbaum, the Salmanticenses.¹⁸ — Add [to this] 3^rd, that the penalty be within bounds and proportionate to the fault. See the Salmanticenses.¹⁴

767. – However, [the question is] whether said penalty be owed before the final pronouncement of a judge?

           Tomás Sánchez,¹⁵ and Fernando Castro Palao, Antonio Diana ^a) etc., cited in the Salmanticenses,¹⁶   say no, because the general understanding about penalties is that they are not owed before a judicial pronouncement. — Nevertheless, the continuator of (Honoré) Tournély,¹⁷ Apollonius Holzmann, ^b) Leonardus Lessius, ^c) and also Sylvester Mazzolini (Silvestro Mazzolini da Prierio), Enrique de Villalobos and others, along with the Salmanticenses,¹⁸hold more probably the opposite; the reason is that this penalty takes into consideration the agreement more than [it takes into consideration] the penalty.

768. – ‹‹10^th: And it is not usury to make an agreement and to receive something owing to damnum emergens [lit. “actual or direct financial loss”] (if in fact the loan truly be the grounds for it). or of lucrum cessans or cessaturum [lit. “lost profit” or “profit about to be lost”], provided that the borrower be given previous warning about this. As would be the case if you wished to repair [your] home, or were able to buy wheat now at an opportune moment, but in depriving yourself of your own money by giving the loan, [your] home falls to pieces, and subsequently you buy the wheat at a higher price. Likewise, you will not be able to make a profit with your money, something you were able and you wanted [to realize] by doing business, insofar as the borrowing is truly the basis [of the title] of lucrum cessans. — In which situation, Francisco de Toledo notes that one must suppose in this title of lucrum cessans: 1^st, that you truly wished to do business with that money, and [that] you do not have other [funds]. 2^nd, that you prefer to make a profit or otherwise by doing business than by lending in this manner, insofar as you lend such a quantity to oblige the borrower. 3^rd, that you exact less than you were able to acquire by profit, and with expenses having been subtracted, because lucrum cessans is not in act but in potency, and [is] subject in the future to changeable outcomes. Wherefore, by the light of the judgment of a prudent man, on the basis of his greater or less certainty, you will be able to estimate the value of it, and thus make an agreement about it with the borrower. St. Thomas, Luis de Molina,¹⁹ Juan de Salas,²⁰ Juan Cardinal de Lugo,²¹ [and] Martino Bonacina.²²  — Hence he who does not have the intention of doing business, or if there were no commodities [for sale] or they were not expected in a short time period, or he was not morally certain about the profit, can receive nothing beyond the principal, because this borrowing was truly not the basis of lucrum cessans [lit., “lost profit”].

           ‹‹ In consequence of the same set of circumstances, it is usury if merchants selling on credit should receive by the title of lucrum cessans something beyond the highest price [pretium rigorosum], for instance, [if] they should sell a thing worth only 100 for 105 to be paid after a year; the reason is that in selling at credit (which is virtual borrowing), [the merchants] have more buyers, and they sell more things and in this fashion the lucrum cessans is offset, and to the end that [the profit] is not lost owing to this sale. Antonio Diana¹ [and] Juan Gil Trullench.² See the following Dubium [VIII]. ›› On this matter, read through proposition 41 among those proscribed by Innocent XI.

           It is certain, by reason of the title damnum emergens [lit., “actual or direct financial loss”], that it is lawful for the lender to exact that which is of advantage to himself with due respect to the loan.—Thus [affirm] all [theologians] along with St. Thomas³, who gives the reason, saying: For this is not to sell the use of money but to avoid a loss.

           However, [there is the question] whether it be lawful by reason of the title of lucrum cessans.

           Domingo de Soto⁴ is in doubt; And John Duns Scotus ^a) Durandus of Saint-Pourçain, and others, cited in Juan Azor, absolutely say no. The same St. Thomas⁵ seems to have been close in opinion to these [theologians], where he added, But [one making a loan] cannot reduce to an agreement the compensation for a financial loss, which is under consideration in this [reply to obj. 1] because he ought not to sell that which he does not yet have and can be in many ways be hindered from having. — But commonly other Doctors say yes, such as Tommaso de Vio (Cajetan),⁶ François Du Bois,⁷ Leonardus Lessius,⁸ François Genet,⁹ the Petrocorensis,¹⁰ Martin Wigandt,¹¹ the continuator of (Honoré) Tournély,¹² Anacletus (Johann Georg) Reiffenstuel,¹³ the Salmanticenses¹⁴ along with Pedro de Navarra, Paul Laymann, Gregorio de Valencia, Martino Bonacina, [and] Fernando Rebello, etc.  [Justinian’s Digest at] l.13, ff. Rem ratam hab. [***] approves this title; and our most holy Pope Benedict XIV seems to have distinctly approved it, saying,¹⁵ And likewise it is not denied that very often one’s own money can be invested and spent by every single one through other contracts of a nature utterly different from the nature of a loan, either to acquire for oneself annual yields, or also to carry on lawful commerce and business, and in the same matter garner honest profits.

           The reason for our opinion is that, as the same St. Thomas¹⁶ teaches, someone can be caused injury in two ways: In one way, because what he actually has is taken away from him. In the other way… by hindering him from acquiring what he was on the road to having; and it is not necessary to compensate such a financial loss on a par, because to have something in potency is less than to have it in act. — And the holy Doctor¹⁷ says that it also holds good for a gain that someone expects from his own money. Observe the words of St. Thomas: To be sure, he who has sown seed in the field does not have a harvest in act but only in potency; and, similarly, he who has money does not yet have a profit in act but only in potency, and both can be hindered in manifold ways. And it is no obstacle that the holy Doctor understands¹⁸ it in terms of the lucrum cessans [lit., “lost profit”] as a result of the lateness of a borrower not paying within the fixed time period. For whether the profit be lost as a result of the borrower’s lateness or as a result of the legal situation of the loan, the same ruling principle for exacting lucrum cessans becomes operative, since such interest is not owed to the one making the loan, except in consideration of compensation for the financial loss that in each of the two cases accrues to him.

           However, in regard to St. Thomas’ text quoted in the first passage [above], François Du Bois,¹⁹ replies that, in that quotation, the holy Doctor denies that the money lender can exact the whole profit to be gained, but [does] not [deny exaction of] a part of the same. And he rightly answers in this way, since the holy Doctor himself teaches in the second passage quoted above that a thief is bound to make good a financial loss, not however on a par, explaining: because to have something in potency is less than to have it in act. If, therefore, a thief is bound, on account of theft, to make good to the owner the lucrum cessans [lit., “lost profit”] according to only a valuation of an expectation, why, according to the same [monetary] valuation, will the money-lender be able to exact lucrum cessans from a loan? — That is confirmed in the highest degree from the bull of Benedict XIV, where¹ it is said one can justly exact something from a loan if just titles are simultaneously present, I mean, if the money otherwise had had to be put toward a lawful commercial transaction.

769. – Nevertheless, to exact interest of this sort, three conditions are required:

           The 1^st condition, that from the onset the interest be reduced to an agreement. For after a contract [has been made] the lender can seek nothing, even if he were heedless in the matter of his own financial loss, unless he be compelled by the borrower by means of force, fear, or deceit (as St. Thomas, ^a) Lessius,² and others [teach]), or unless he be unwillingly, albeit lawfully, compelled to make the loan, for instance, by the country’s ruler in respect of the public good. — In the same manner, the borrower is bound to financial loss and lucrum cessans, if he be justly sued for payment, or the established term [of the agreement date] passes, and he culpably should not pay (St. Thomas³ and the Salmanticences ⁴).

           But here there is a doubt: whether it is necessary in a contract to forewarn the borrower about the true financial loss or other just title for which something beyond the principal can be exacted?

           The first opinion, which Juan Cardinal de Lugo⁵ along with Domingo Soto, ^b) Juan de Salas, ^b) Pedro de Aragón, ^b) Miguel Bartolomé Salón Ferrer, ^b) etc. hold, says no; likewise Tommaso de Vio (Cajetan), ^c) Pedro de Tapia, ^d) Enrique de Villalobos, ^d) quoted in the Salmanticenses.⁶ — The reason is that the borrower cannot in a reasonable manner bring forward his own assertion for a just title, but he ought to enter into an agreement in conformity with his mental and legal capacity, and to reach an agreement on just title. Most of all because, by way of general rule, a borrower is not impeded so far as concerns a contract from the fact that he had been apprised that a profit was exacted by a just title.

           Just the same, the second more well-grounded opinion—although before the present time I adhered to the contrary — teaches that a warning is necessary. So, along with Hermann Busenbaum, ^e) as above, Leonardus Lessius,⁷Father Daniello Concina,⁸ the continuator of (Honoré) Tournély,⁹ the Salmanticenses¹⁰ along with Paul Laymann ^e) Fernando Castro Palao, Juan de Dicastillo, etc. — The reason is that the borrower, thinking the contract to be usurious, does not agree to a just contract, to which he perhaps would not agree if he had been apprised of the just title; that is to say,  thinking the title to be unjust, perhaps he enters into the contract hoping not to pay for the use of the money, or to offset for himself those [sums] paid [for the use of the money], or at least that the other [party] restore [the money paid] at the time of death.[†††] In any event, Daniello Concina properly says, perhaps it could turn out that he would take away from the loan a greater pecuniary loss than an advantage. — But the more generally applicable reason is that an intention according to interpretation [voluntas interpretativa] or rather a conditional intention is not adequate to enter into a contract (as we will speak at no. 773, [at the paragraph beginning with the] words “All the same, the second”), but actual or virtual intention is required, or at least [will that is] possessed at some time or another and not revoked, according to what is to be said in book VI, On the Sacrifice of the Mass, no. 335, Quest. 1. Therefore, let the lender, if he should lose profit, ascribe [it as owing to] his own negligence, for as St. Thomas¹¹ affirms, He ought to…. have been on his guard lest he incur a pecuniary loss; and he who agreed to the loan ought not to incur a financial loss on account of the foolishness of the lender.

           But in fact, one must say otherwise, if a just title in reality were in existence, and both the lender and the borrower were to agree upon a contract in the best manner they could, as we shall say shortly in Quest. 4, no. 773, beginning with the words “It is of no consequence.”

           The 2^nd condition is that not more may be exacted than may be the profit that is expected from another lawful contract, in accordance with the valuation of expectation and risk, and with the expenses having been subtracted. — See the Salmanticenses.¹

           However, [there is this question]: Whether the valuation of the trouble to be discharged in such profit must be subtracted? Tommaso de Vio (Cajetan), Pedro de Tapia, [and] Enrique de Villalobos say with probability yes. — But Leonardus Lessius ^f) and the Salmanticenses ² along with Martino Bonacina, ^f) Juan Gil Trullench, Fernando Castro Palao, Juan de Dicastillo, [and] Juan de Salas say, more probably, no, because the lender is not bound to remove a valuation of the respite from the trouble that he would be willingly ready to take on. Otherwise, if the trouble were to be offset, seldom could something be exacted by merchants for lucrum cessans [lit., “lost profit”]. But yet, I am of the opinion that, by reason of equity, some deduction ought to be made in a case in which there would be a respite from sizeable trouble, such that in order to free himself from it, the lender probably would pay out something.

           The 3^rd condition is that the loan truly be an occasion of financial loss or lucrum cessans [lit., “lost profit”]. — To be sure, if the lender has other money, which he uses instead in order to conduct business; or if he is able and wishes to secure for himself by another route or occupation the profit deriving from engaging in commerce, which he loses because of the loan, to which [occupation] he might not have been able to be free to devote himself by carrying on trade, then he cannot exact something, unless it would for subjecting himself to greater trouble in that other way of making a profit. See Leonardus Lessius, ³ [and] the Salmanticenses ⁴ jointly with Fernando Castro Palao,Juan Gil Trullench, etc.

           However, [a question arises] whether a lender may lawfully exact interest for damnum emergens [lit., “actual or direct financial loss”] or lucrum cessans, if he should make a loan uncompelled by the entreaties of the other but, in fact, he himself comes forward as a volunteer to make the loan.

           Konrad Summenhart and certain others, quoted in Leonardus Lessius,⁵ say no. The reason is that when a money-lender, unasked but of his own accord, offers a loan, the profit is not lost because of the loan or the borrower, but that very lender keeps the profit from himself. — But more probably the same Leonardus Lessius, Juan Cardinal de Lugo⁶ along with Luis de Molina,^g) Martín de Azpilcueta Navarro, Francisco de Toledo,^g) Gregorio de Valencia, Domingo Báñez, ^g) etc. say yes. The reason is that the money-lender then does not offer the loan without regard to any particular circumstance, but conditionally so that lucrum cessans be offset for him; and thus, the borrower, by accepting the loan, is the true cause of the loss of profit, and actually keeps the money-lender from justly making a profit from his own money. [The situation is] just as if someone, to oblige another, should offer to forego the cast of the fisherman’s net, he lawfully exacts the price of the expectation of that cast: the reason is that the other [party] is the true reason that the expected catch of fish is kept from the former.

770. – The 1^st question [is]: Whether it be lawful for a money-lender to make an agreement at the outset for paying a fixed amount of money when damnum emergens or lucrum cessans is uncertain, or will only probably occur?

           Father Daniello Concina⁷ makes a distinction. And he says that if it is certain that a financial loss will occur or the profit is to be lost, presumably then because the opportunities of profiting are in act or very closely at hand, and there is a doubt only about a greater or lesser amount, then rightly the value can be assessed by the judgment of prudent men, and the amount to be paid [can be] reduced to an agreement. — To be sure, [it is] otherwise if the financial loss is not with certainly to occur, or if the opportunities of making a profit could only probably present themselves. The reason is that, in these cases, it could happen that the financial loss may not occur, or the opportunities may not present themselves, and then the money-lender would make a profit from the loan alone.

           But more correctly, the Salmanticenses¹ along with Jan van Malderen, Enrique de Villalobos,^a) Juan Gutiérrez, ^a) Pedro de Tapia,^a) Tomasso Tamburini ² jointly with Martín de Azpilcueta Navarro, [and] Juan de Salas, likewise François Du Bois ^b) and Florentius de Cocq ^b) quoted in the | continuator | of (Honoré) Tournély, ^b) think that a lender can lawfully make an agreement about some fixed amount to be paid, after having paid heed to due proportion with respect to fear of financial loss or the expectation of future profit. The reason is that in such a way a proper balance is now well preserved; for, just as with financial loss not accruing, the lender would make a profit, so on the contrary, with financial loss accruing, the borrower will make a profit. — And it is not of importance that the financial loss to accrue not happen afterwards, because an agreement about something additional to the amount is not made on account of future financial loss that perhaps will not happen, but on account of its probable risk, which is assumed [to exist] in reality, and, in reality, it is capable of valuation by a money price. [The situation is] just as if someone sells the cast of a fisherman’s net, he assuredly does not sell the fish, which perhaps will not be taken, but he sells the probable expectation of them, which in this case exists in fact. An objection arises [founded on Justinian’s Digest at] l. Quemadmodum, § Item Labeo, ff. ad l [eg]. Aquil. [= DIG. 9.2.29.3], where it is authoritatively established that if someone breaks fishing nets, he is obligated to pay nothing to the owner for the expectation of fish to be caught but only for the financial loss of the nets. But the answer [to that objection] under the [Great] Gloss, [‡‡‡] is that then, positively on the basis of the Lex Aquilia [§§§] [“Aquilian Law”], the owner has no right to sue in a trial for what is due [actionem] for the impeded expectation of a catch of fish; but he properly has a right to sue from another authority, on the basis of [Justinian’s Digest at] l. Si jactum 13, |al. 12| ff. de act. empt. et vend. [= DIG. 19.1.12], where it is said as follows: If I buy the cast of a fisherman’s net, and the fisherman is unwilling to cast [his] net, the uncertainty of the matter at issue must be estimated for its monetary value. The [Great] Gloss adds, The probable amount that might have been caught is estimated for its monetary value. — Wherefore it is evident that financial loss that will probably occur from a loan, albeit uncertain, can lawfully be made good.

           For the same reason, Martino Bonacina⁴ with probability affirms that a money-lender, who not certainly but only probably was about to devote money to conduct business, can exact something in a given proportion of probability. — But you will say: If something can be exacted on the basis of the probability of the employment of the money, therefore something also could be exacted for the possibility of employing [the money]. But I answer by denying the equivalence [of the words]. Possibility is the simple potentiality or non-incompatibility of the employment [of money]; consequently, the money-lender has no actual or positive foundation for a future profit. On the other hand, the probability of a future profit has indeed a positive foundation for such a profit or the expectation of it and, therefore, is capable of valuation by a money price.

           What, [then], if the money-lender should only be irresolute, or should wish not to do business?

           In this case also Tomasso Tamburini, ¹ Juan Cardinal De Lugo² along with Juan de Salas ^c) affirm that he can exact something, because to strip himself, so as to oblige the borrower, of the opportunity of weighing the pros and cons and devoting the money to business is equally capable of valuation by a money price, since he is not bound to be gratuitously stripped of that expectation or opportunity. It is just as if someone should be perplexed about whether he may be able or may wish or not to go fishing tomorrow, he rightly can exact something if, to oblige you, he puts himself under obligation not to go fishing. — And this last [case] does not seem improbable in that this binding forfeiture [of a gainful pursuit] is capable of valuation for some money price (since the money-lender is obliged not to demand the loan back for some time).

           However, although, as we have said, it might be lawful towards the beginning to enter into an agreement as to a financial loss to occur or uncertain profit to be lost, it will still never be lawful to exact, from the beginning, interest ^d) of this kind by means of an agreement, as Juan Cardinal de Lugo,³ Juan Azor,⁴ [and] Daniello Concina⁵ teach in common. The reason is that if you should lend 100 and should receive ten for lucrum cessans [lit., “lost profit”], you are now not lending 100 but in fact 90; however, it is also a burden to keep the borrower, as a consequence of an agreement, from the advantage of money loaned before the right time, and it is usury to impose it. — Nonetheless, Juan Azor ^e) concedes that an agreed-upon profit can be exacted towards the beginning. But Daniello Concina⁶ rightly rejects this as well, because to keep the borrower from having that loan [illa re {commodata, “borrowed object”}] before the right time is also a burden.

771. – The 2^nd question [is], Whether you may be able to exact lucrum cessans [lit., “lost profit”] on the score of a loan of money intended to conduct business, if you should have other money not [so] intended, which you could still substitute for the business transaction?

           And, indeed, if you had set that money aside for [your] family’s use, presumably to support [your] household, to provide a dowry for [your] daughters, to give comfort to [your] old age, or so that you do not expose your state in life to risk, then you will lawfully exact lucrum cessans, because you are not bound by reason of the loan to neglect foresight. — Thus [say] Leonardus Lessius⁷ along with Martín de Azpilcueta Navarro, and also the Salmanticenses,⁸as they presuppose it [to be] certain.

           But there is a doubt: what if you were able to substitute other money without such an inconvenience?

           With probability, others deny that then [you] can exact something, because then you do not lose profit in consequence of the loan. But Leonardus Lessius, Fernando Castro Palao,⁹ Tomasso Tamburini,¹⁰ Patritius Sporer¹¹jointly with Luis de Molina, Paul Laymann, Cardinal de Lugo, Claude Lacroix,¹² likewise Gregorio de Valencia, Juan Gil Trullench, Enrique de Villalobos, (and the Salmanticences think it deservedly probable) affirm that, with the stipulation that you have determined that money alone for a business transaction and to expose it to risk, [you] can lawfully solicit lucrum cessans The reason being [is[ that then the borrowing is truly the cause of your losing the profit expected from that money. — Nevertheless, I would not sanction this, unless, when you make the loan, you actually have the intention not to substitute that reserved money for a business transaction.

772. – The 3^rd question is, Whether you may then be able to exact interest, if you have not intended the money for business without regard to any particular circumstance, but with a condition attached, (as if you should say, I would intend to conduct business, except if many were to solicit a loan)? [****]

           Lessius¹⁴ says it is probable that you may be able [to exact interest]. For even if by reason of a large number of those receiving a loan, no one loan may be of itself the justificatory principle [for lucrum cessans], but all [the loans] together may be the justificatory principle for lucrum cessans [lit., “lost profit”]; Nevertheless, it is true that you, in order to make a loan to these [borrowers] just mentioned, are deprived in actuality of a profit; and from the opposite direction, the borrowers in this matter do not think an injury is being done to them. And Paul Laymann,¹ Tomasso Tamburini,² [and] Patritius Sporer³ believe the same thing. — But you will say: This man is guilty of usury, because he intends to make a profit effectually from the loan and ineffectually from doing business. But one can answer: This man, although he may have the ineffectual intention of doing business, he effectually intends, nevertheless, to make a profit justly; and because he can make a profit justly from doing business, therefore he justly makes a profit from the loan, since the loan is the true and effectual reason that he may lose the profit from doing business.

           Leonardus Lessius,⁴ however, rightly remarks that this is not easily to be allowed on account of palliating [“cloaking”] usury. ^a) For, as Herman Busenbaum, jointly with Francisco de Toledo, ^b) notes at this point [in the discussion], in order that someone may be free from the stain of usury, he ought to prefer to make a profit by doing business rather than by making a loan, and he ought to make a loan only to oblige the borrower.

773. – The 4^th question [is], Whether, if someone in good faith should enter into a usurious contract and should exact a profit, may he, after having recognized the matter subsequently, be able to keep it if he was truly able to make a contact on the basis of some just title, namely by reason of risk, lucrum cessans, etc.?

           The first opinion says yes, because whoever completes a business arrangement in good faith always endeavors to make a contract in the lawful manner that he is allowed. Therefore, to be sure, he entered into this agreement in such a manner because he deemed it lawful; wherefore, he virtually purposed to complete a business arrangement in a lawful manner by which the contract could be made honorable. — So [say] Juan Card. de Lugo, ^a) Manoel de Sá, Antonio Diana, Adam Tanner, ^b) quoted in the Salmanticenses, ⁵ and Tomasso Tamburini.⁶

           All the same, the second more well-grounded opinion, which the Salmanticenses,⁷ Leonardus Lessius,⁸ Daniello Concina,⁹ [and] the continuator of (Honoré) Tournély¹⁰ hold, denies that the money-lender can, in this case, keep the profit received. — The reason is that by no means can it be said that he had a virtual or implicit intention, since he did not contemplate an other-than-usurious contract. In this case he only would have had an interpretative intention, which is not sufficient to make a contract (as we said above in no. 769, [in the paragraph beginning with the] words “Just the same, the second”).

           It is of no consequence to say that this money-lender can keep the profit as a possessor bonae fidei [††††] [lit. “possessor in good faith], who is liable only to that whereby he has become richer; however, that man cannot be said to have become richer who, by reason of the loan, lost the profit that he was able to receive. —  To be sure, the answer is that, in order to exact something justly beyond the principal in a loan, it is in every respect required that the borrower be given notice of a just title, as we said above (loc. cit., no. 769, [in the paragraph beginning with the] words “Just the same, the second). Or at least that both the money-lender and the borrower expressly or implicitly agree about the just title, at least explicitly purposing to complete a business arrangement in the best manner that they can; that, on the other hand, is probably sufficient enough to exact that which could lawfully be exacted according to the just title just mentioned, although not in so many words, as Claude Lacroix¹¹ and the Salmanticenses [and] the continuator of (Honoré) Tournély,¹² say, and also Leonardus Lessius¹³ supposes it [to be] probable.

           Moreover, in his bull [sic] on usury, [there is the guidance of] our Most Holy Pontiff Benedict XIV, where, after he said in [section] no. 3: However, by these [above-mentioned prohibitions] it is not at all denied that certain other titles (as they affirm) can perhaps, at some time or other, exist simultaneously together with a loan contract, and these same [titles] by no means are generally innate and intrinsic to the very nature of a loan, from which [titles] may rise a wholly just and legitimate basis for properly exacting a certain something in addition beyond the principal due from the loan, he then immediately added as follows: And, likewise, it is not denied that very often one’s own money can rightly be invested and spent by each-and-every-one through other contracts of a nature utterly different from the nature of a loan, either to acquire for oneself annual yields, or also to carry on lawful commerce…, and by those same means garner honest profits. In conclusion, [Pope Benedict XIV] affirms in [section] no. 5, that it is false [to say] that always and everywhere just titles or contracts are here at hand; consequently, he advises as follows: Therefore, whoever should wish to consult his conscience, it is necessary that he diligently examine beforehand whether there is another truly just title along with the loan or whether another truly just contract may present itself in relation to the loan, thanks to which the profit that he seeks may be returned devoid of and free from every stain. — Afterward he wisely instructs: Those who wish to show themselves to be free from and morally unblemished by every stain of usury…, must be urged to reveal aforetime the contract to be undertaken and explain the conditions to be included, and what proceeds [fructum] they may look for as due from same money

           And here one must earnestly give heed to that about which the Pontiff, in the same bull, reminded confessors: Let them keep themselves at a distance…from extremes. Indeed, some judge these matters with so great a severity that they censure any profit whatsoever taken from money as unlawful and connected with usury. But on the other hand, some are so lenient and easygoing that they think any financial advantage at all [to be] free from the baseness of usury. Let them not to an excessive degree cling to their own private opinions, but before they give an answer, let them consider several authors who are cited to a greater extent among the others. Then let them adopt the parts that they understand [to be] clearly confirmed both by reason and authority. But if a discussion should arise while some contract is being brought into consideration, absolutely let no insults be fashioned against those who follow an opposing view, nor let them claim that the opinion must be branded with grave censures, especially if it by no means is without reason and the attestation of outstanding men. — I would wish that [those individuals] — [namely,] those who rather frequently do not hesitate to behave insultingly with abusive language against authors of no mean distinction because they contradict ^c) their opinions — would heed this [papal advisement].

774. – The 5^th question [is], What agreements can be lawfully added as a stipulation in a loan?

           Above all else in this matter, that general rule handed down by St. Thomas¹ must be observed: that every burden capable of valuation by a money price, [which is] imposed in a loan as due out of justice is genuine usury. [The situation is] otherwise, if a thing that is not measured by money should be exacted, such as good will, friendship, and like things. So [says] the holy Doctor. — Likewise, it is settled that it is not usury to exact from a loan a thing due in other circumstances as a matter of justice. Hence, in a loan one can lawfully exact that the other desist from private criminal prosecution, from unjust harassment, etc. (according to what was said On Simony, from no. 98 [in the treatise “On the First Commandment of the Decalogue” of Liguori’s Theologia Moralis]). Thus [say] Leonardus Lessius, ² the Salmanticences³ together with Fernando Castro Palao, Juan Gil Trullench, Tommaso de Vio (Cajetan), etc.

775. – But there is a doubt. 1^st: Whether an agreement of the lex commissoria [‡‡‡‡] can be added as a stipulation in a loan, to wit, that with payment not being made in accordance with the appointed time, a real-security pledge may be obtained by the one making the loan?

           In common, the Doctors say no (Fernando Castro Palao, ^a) Martín de Azpilcueta Navarro,^a) Martino Bonacina,^a) etc. together with the Salmanticensces. ^a)), unless the real-security pledge should not be valued at a greater amount than the principal, or unless there should be an agreement (certainly a lawful one) that, if the payment should not be made by such time, the real-security pledge would be sold, and, in accordance with the money-price, the lender would keep his own principal.

           However, [one may ask] whether there may be a legally valid agreement that a real-security pledge be allowed as a penalty for unfulfilled payment even if [the real-security pledge] has a greater value [than the loan amount]? Gabriel Vásquez, Fernando Castro Palao ^b) and Diego de Covarrubias y Leyva say no. But [the proposition] is affirmed probably with Martino Bonacina,^b) Juan Gil Trullench, ^b) Juan Azor, ^c) Reginald of Piperno, ^d) etc., quoted in the Salmanticenses,¹ in accordance with the things were said in no. 766, where a lawful poena conventionalis [= a penalty agreed upon by both parties in order to conclude the contract] was in that case approved.

776. – However, it must be noted that if the money-lender should receive in the place of a real-security pledge a fruitful thing, he is bound to calculate its fruit into the principal; and therefore an agreement in which the creditor may be able to use the real-security pledge, to enjoy its fruits until the debt be paid, called antichriseos [lit. “of antichresis” or “antichretic”][§§§§] (in Italian contratto a godere, [lit., “contract to benefit from”]), is commonly rejected of itself as usurious, prescinding from another title. It is definitely settled with St. Thomas ² and in common against Antonio Diana, ^a) because, since the thing still remains in the absolute ownership of the borrower, it bears fruit for him alone, according to [the Decretal] chs. 1 and 2, [under the title] On Usury. — I should rather say, the lender is bound to return those fruits that he, through his own fault, took no heed to gather. See the Salmanticences.³

           For all that, the exception is a real-security pledge given for a promised dowry; its fruits are not calculated into the dowry to support the [financial] burdens of marriage, as Daniello Concina ^b) and the Petrocorensis ⁴ [hold] in accordance with the [Decretal] in the ch. [beginning with the word] Salubriter, [under the title] On Usury, where it is said, We do not believe that a son-in-law must be compelled to reckon into the principal the fruits of the possessions that have been assigned to him by the father-in-law as a pledge for the calculated dowry. And this [practice] is current, be it the case that the fruits of the pledge exceed the burdens of the marriage when the pledge is agreed to without qualification and at the time in which the dowry is determined. Nevertheless, [it is] otherwise if it only be given for security of the dowry, or with the dowry already having been determined. Similarly, if the son-n-law should not shoulder the financial burdens of the marriage. See the Salmanticences.¹

777. – There is a 2^nd doubt: Whether it can be reduced to an agreement that those things that are due from him [viz. the borrower] be paid by the borrower, not as a matter of justice but as a matter of charity or religion: I mean, that a physician heal if there is no another [present]; a legal advisor act as an advocate [before and during a court proceeding]; a rich man hasten to relief in a grave necessity; likewise, that he who has solemnly promised alms, furnish them; that he hear Mass on Sundays and feast days etc.?

           Juan Azor,² Martino Bonacina, ³ likewise Diego de Covarrubias y Leyva, ^a) Juan de Salas, Juan Gil Trullench, Reginald of Piperno, etc., quoted in the Salmanticenses,⁴ deny that it can be done without the stain of usury, because the agreement adds a burden of justice that was not present beforehand. And Domenico Viva,⁵ holds this [opinion], saying that every agreement imposing a new burden on a borrower is usurious. — All the same, Juan Cardinal de Lugo, ^b) Leonardus Lessius, ⁶ Daniello Concina, ^c) | the continuator of | (Honoré) Tournély, ⁷ the Salmanticenses⁸ along with Gregorio de Valencia, ^d) Fernando Castro Palao, etc. contradict [this opinion] because, as they say, such an added-on obligation does not incur [meretur] a money price, since it is to the advantage of | not | so much the lender as the borrower, who in fulfilling [it] is unburdened of an obligation that he already had. They add: if according to the opinion of all it can be reduced to an agreement that the other cease from causing injury to a man, so much the better [that he should cease] from causing injury to God.

           Notwithstanding these [weighty authorities], never have I been able to be satisfied with this second opinion (no offense intended toward so many learned men). The reason is that [borrower] himself is bound as a matter of justice to fulfill every burden that is imposed on the borrower in virtue of the agreement, and therefore [the burden] in fact becomes capable of valuation by a money price, in such a way that if, after such an agreement, the physician [mentioned above] should not heal [or] the legal advisor should not act as an advocate [before and during a court proceeding], he will by all means be bound as a matter of justice to offset the financial loss that will result from the non-performance of therapeutic treatment or of furnishing legal assistance in a trial: Previously he was certainly not under moral or legal obligation to make good that financial loss. Accordingly, of what importance is it that an imposed agreement turns out well or not to the advantage of a borrower, since usury consists in this [fact]: that a burden capable of valuation by a money price is exacted from a loan?

           And what is more, I wonder why the Salmanticenses, who, speaking of simony (and as we said in no. 59 [in the treatise “On the First Commandment of the Decalogue” of Liguori’s Theologia Moralis]), maintained as definitely settled in accordance with St. Thomas that, inasmuch as it would be a burdensome contract, he is guilty of simony who gives something to somebody else with the obligation of furnishing some spiritual work, even if that [work] be not to the advantage of the giver; but in fact here [in this 2^nd doubt] they hold that it is not usury to impose a similar obligation, whereas, in accordance with a common principle, the saying is: That which in spiritual matters is simony is usury in temporal matters.

           In addition, all rightly teach that an agreement to pay that which already was previously due as a matter of justice or to remove unjust hardships does not occasion usury, because then nothing capable of valuation by a money price is exacted, or [nothing is exacted] in relation to which the borrower would have been able to lay claim to a money price. So [say] Daniello Concina,¹⁰ | the continuator | of (Honoré) Tournély,¹¹ and others.

778. – There is a 3^rd doubt: Whether it can be reduced to an agreement that the borrower grant a pardon of a wrongful act, in respect of which he was not bound as a matter of charity but [for which] he was justly able to seek satisfaction?

           Domingo de Soto, Martín de Azpilcueta Navarro and Sylvester Mazzolini (Silvestro Mazzolini da Prierio), quoted in the Salmanticenses,¹ say yes, because then by reason of friendship, the injury is usually pardoned, in keeping with human nature. All the same, far more probably and more correctly, Juan Cardinal de Lugo,² Paul Laymann, ^a) Martino Bonacina, [and] Fernando Castro Palao, cited in the Salmanticenses,³ say no, because an obligation genuinely capable of valuation by a money price would be added. Leonardus Lessius, however,⁴ and the Salmanticenses,⁵ along with Juan Gil Trullench, Marcus Serra, Juan Martínez de Prado, etc. attach themselves to the second opinion, when it would be an agreement of justice. But in fact [it is] otherwise if it were a “covenant of friendship” [foedus amicitiae] (as they say), from which it may be exacted that the other [party] willingly forgive a wrongful act; but they properly note that this is not without the danger of palliated [lit., “cloaked”] usury.

779. – There is a 4^th doubt. Whether an agreement to confer an office on the lender be lawful?

           Some say that if this be sought as a matter of justice, it would assuredly be usury, and it is the common [teaching] with St. Thomas⁶ and others, in opposition to a few [authors] cited by the Salmanticenses.⁷ — But indeed [it is] otherwise if it should be sought as a matter of friendship or gratitude. The Salmanticenses, however, ⁸ say that, in practice, this cannot be allowed, except perhaps in a rare case. But I say that this must, without qualification, never be allowed, in accordance with [the condemned] proposition 42 of Innocent XI (as related above), where something beyond the principal exacted as due in virtue of gratitude was excused from usury. —  Hence, a man receiving an office in such a way is bound to resign it as a matter of justice, or to count the money price of the office into the principal, unless the borrower is assumed not to want this, since otherwise the conferral [of office] is by now considered valid. See Leonardus Lessius,⁹ Juan Cardinal de Lugo,¹⁰ [and] the Salmanticenses.¹¹

780. – There is a 5^th doubt. Whether it be lawful to obligate the borrower to be answerable for the things that, as a matter of gratitude, he was bound by, for instance, that he should purchase necessities for himself from the lender, that he should lease his house, that he should maintain [his] estate with a just wage for work performed?

           In company with Hermann Busenbaum (no. 791, at [the paragraph beginning] 12^th), in all circumstances [this] must be denied according to the same [condemned] proposition 42, as we have said, not only if these things are exacted as due as a matter of justice, ^a) but also [if these things are exacted] as due as a matter of gratitude. — The Salmanticenses, however, ¹² say that of itself it would not be unlawful simply to ask the borrower to perform these things freely as a matter of friendship; and in this St. Thomas¹³ seems to agree expressly where he says: But if the gift of service [real remuneration] or of the tongue [oral remuneration] be presented not as if arising from obligatio rei [the obligation of a thing by the tie of a real security] but as a matter of good will, which does not fall under a valuation of money, it is proper to receive, exact, and expect this. However, speaking speculatively, this teaching is current, but in practice, the Salmanticenses¹⁴ rightly say it is exceedingly dangerous.

           Nor must that which Paul Laymann¹⁵ affirms be allowed, that it is lawful to obligate the borrower to perform these things if the obligation be imposed not as a burden but as a condition without which the loan would not be granted. The reason is that, with the acceptance of the condition, a burden is now in reality imposed, and the borrower is obligated to it: something that is never lawful according to St. Thomas. (See the following no. [781].)

781. – However, if the agreement be [one] of repaying, St. Thomas¹⁶ teaches as follows: It is lawful for one making a loan to accept, at one and the same time, some other loan; however, it is not lawful to obligate [the borrower] to make [the lender] a loan in the future. Therefore, it is lawful to obligate the borrower to repay in the self-same term of [your] loan because you can ask from the second party a moral duty originating in friendship, which the first party looks for as due from you, provided it not be more burdensome to him. And, thus, you would be able to ask as well that in the self-same term he lease [his] house, sell [his] grain etc. — [It is] otherwise, however, if you were to obligate [him] at a future time. Such is the case with St. Thomas, Leonardus Lessius,^a) and the Salmanticenses¹⁷ along with others, in opposition to Domingo Báñez ^b) and Manuel Rodrigues (Sp. Rodríguez) Lusitano, ^b) etc., who excuse from usury an agreement of repaying still further into the future; but [they do so] with improbability.

782. – There is a 6^th doubt. Whether an agreement be lawful that a loaned thing be returned in the same specific kind and quality, at which time one believes it will be worth more?

          In this, it is certain, 1^st, that it is lawful if it is equally doubtful whether the value of the thing is to be increased or reduced: See Leonardus Lessius. ¹ — It is certain, 2^nd, that if you were going to keep the thing until a time in which you should with certainty believe its value was going to be increased, you can ask that the thing be returned in the same amount, or [you can ask for] its increase, after having, however, deducted the estimate of risk or expenses in keeping the thing. So [say] Louis Habert, Daniello Concina, ^a) [and] likewise Martino Bonacina, Juan de Dicastillo, Fernando Rebello, etc. along with the Salmanticenses.² — It is certain, 3^rd, that it is lawful to loan old grain so that new [grain], which one does not believe will be worth more or [be] better than the old, be returned. So [say] the Salmanticenses³ jointly with Fernando Castro Palao, Luis de Molina, Juan Gil Trullench, etc., along with Herman Busenbaum (no. 791).

          Therefore, the question is: whether you may be able to ask that a thing, which you are not going to keep. may be returned to you in the same amount, in the time period in which you believe it will be worth more? Domingo de Soto ^b) and Luis de Molina, ^b) as cited in Leonardus Lessius, ^b) say yes; and Paul Busenbaum ^c) keeps close to these (herein below, no. 791 at 18^th). The reason is, as they say, this is the nature of a loan, that the thing be returned in the same amount.; and because, for the sake of the borrower, [the loan] is fixed so that the thing not be returned before that time.

          But Leonardus Lessius ^b) teaches that this opinion in that event is probable, since it had been doubtful whether the money price would  be increased or whether you had kept the thing (in which case I also think the thing now having increased in value must be returned with some deduction from the total, according to the assessment of the aforesaid doubt, lest you make a profit from the loan, having supposed that, with certainty, you should have intended to keep the thing.) For, in other respects, Leonardus Lessius duly says that | he | does not see by what right you may be able to accept an equal measure. — The Salmanticenses, however,⁴ along with Martino Bonacina, ^d) Juan Azor, ^e) and Juan Gil Trullench, ^d) approve of the aforesaid opinion, if on the legal sufficiency of the agreement one should pay close attention to the underlying nature of the thing, after having removed the consideration of value and increase. What is more, this removal — I do not see how it could be done lawfully in view of the fact that the thing was not to be kept for the time of return, and is believed with certainty or more probably to be about to be worth more, forasmuch as the money price of the thing of itself always necessarily pertains to the underlying nature of the thing.

          However, on the contrary, I think it is certain, along with the Salmanticenses,¹ that if the thing at the time of restitution be thought certainly or probably to be worth less, you will be able to ask for a greater measure, in order to keep yourself free from financial loss.

          Just the same these doubts have their place when a thing is thought or believed to be worth more. – But, in fact, if in good faith there is no consideration of an increase or decrease involved, you can rightly make an agreement that the thing be returned to you in the same amount. Thus Leonardus Lessius, ^f) Father Daniello Concina,² and also Paul Laymann, etc., together with the Salmanticenses.³

          Nevertheless, Salmanticenses⁴ jointly with Manoel de Sá, Fernando Castro Palao, Juan Gil Trullench, Francisco de Toledo, ^g) etc. hold that this cannot be said of a loan of money, because in money one deals primarily with value. But Juan Azor, ^e) Martín de Azpilcueta Navarro, ^h) and others, quoted in the same Salmanticenses,⁵ along with Hermann Busenbaum ⁱ⁾ below, no. 791, at 17^th, affirm rightly that an agreement that money be returned in the same form and number of minted coins, when no increase is contemplated or intended, is valid, and [that] it be decided upon expressly. To me, the opinion of these [authors] is more probable, at least if the risk of increase or decrease be joint, as Father Daniello Concina⁶ thinks. However, an agreement to return money in a different particular kind from what is delivered is completely usurious, because a burden capable of valuation by a money price is imposed, as the Salmanticenses,⁷ Daniello Concina,⁸ and others say in common.

          Up to this point [the discussion has been] about agreements, in respect to which Anacletus (Johann Georg) Reiffenstuel⁹ in common with others properly remarks that a contract customary in some territory and normally honored by upright men must not be readily judged to be at fault. — But let us go on to the other questions that remain.

783. – The 6^th question [is], Whether a usurer may obtain absolute ownership of usurious profit?

          Juan Cardinal de Lugo,¹ and also John Duns Scotus, Manoel de Sá, Martín de Azpilcueta Navarro, cited in the Salmanticenses² say yes, because the borrower, although he may give [the usurious profit] through coercion (and for this reason the usurer is bound to restitution), he still gives freely and transfers absolute ownership, just as he who sells a thing, being compelled by fear, transfers [absolute ownership]. — But the opposite must be held in company with St. Thomas,³ and in common with the Salmanticenses,⁴ Daniello Concina,⁵ [and] the continuator of (Honoré) Tournély.⁶ And the reason is that, by every law, a usurious contract is null; moreover, the bare delivery of a thing does not transfer absolute ownership, as is held in [Justinian’s Digest at], l. Nunquam, ff. de acquirendo rerum dominio [= DIG. 41.1.31].

784. – However, in respect to fruits obtained through the acceptance of usury, St. Thomas⁷ teaches that if they have been acquired from a thing consumable in [its] use, then they are not under obligation to be restored, because they are the fruits of a purposeful activity. — [It is] otherwise if they have been acquired from a thing not consumable in [its] use, say, from a house or arable land, because ([in the] the words of St. Thomas) they are the fruits of things, the owner of which is another person, and therefore they are owed to him. And this is holds true even if the usurer should not acquire the fruits, on the chance that the owner had otherwise acquired [them].

          What about the fruits which the owner might not have intended to acquire, but the usurer acquired? — Juan Cardinal de Lugo⁸ says they do not have to be restored, because according to his opinion the usurer obtains absolute ownership of the proceeds of the usurious capital, and is only bound to keep the borrower free from loss. But in our opinion, we think the contrary must be affirmed, as above, in company with the Salmanticenses,^{9 |} the continua tor of | (Honoré) Tournély¹⁰ and Daniello Concina¹¹

785. – The 7^th question [is], Whether one giving advice in favor of usury, or furnishing money to a usurer to lend, be bound to restitution?

          Juan Cardinal de Lugo^a) and Manoel de Sá, Francisco de Toledo, Sylvester Mazzolini (Silvestro Mazzolini da Prierio), Juan de Medina, etc., cited in the Salmanticenses,¹² say no, because these [individuals] are not the causa efficax damni [lit. “efficacious cause of loss,” i.e., their act did not result in an injury and cannot be imputed to them as the doer], since the debtor can subsequently refuse giving money in payment of usury. — But in view of this reason, on the question at hand now Paul Busenbaum along with Leonardus Lessius, Juan Cardinal de Lugo, ^a) the Salmanticenses¹³ along with Fernando Castro Palao, Martino Bonacina, Juan Gil Trullench, etc. affirm that far more probably (I say at least so far as concerns one advising usury) he is bound [to restitution], because he truly is the cause of an unjust contract; and although the debtor would be able not to give money in payment, if he should give money in payment, he would unjustly give money in payment as a result of [the advisor’s] causal agency. — However, it is the common¹⁴ [view] that he who might do those things ^b) to oblige the borrower does not sin and is not bound to restitution; and therefore, by another reason, the first opinion is sufficiently probable because the borrower is reasonably presumed to be assenting in these matters, as Juan Cardinal de Lugo ^a) affirms.

          However, as to the one who delivers money to a usurer, Daniello Concina,¹ Leonardus Lessius, ^c) and the Salmanticenses² in company with Martino Bonacina, ^c) Juan Gil Trullench, ^{c )} etc., affirm that he sins and is bound to restitution, because he very closely cooperated in the financial loss of the borrower, in accordance with what was said at no. 571,[in chapter II, On Restitution, of this same “Treatise V on the Seventh Commandment of the Decalogue,” at the paragraph beginning with] the word Secunda.

786. – The 8^th question [is] Whether one depositing money with [an individual], whom he knows will take advantage of usury, may sin or be bound to make restitution?

          Leonardus Lessius,³ the Salmanticenses⁴ along with Fernando Castro Palao, Juan Cardinal de Lugo, ^a) Martino Bonacina, ^a) and Juan Gil Trullench reply that he would by all means sin against charity, if the usurer would not otherwise have [the means] wherewith he might practice usury; but [the depositor] would not be bound to restitution, because in this [act of entrusting money] he was not inflicting a wrong on borrowers. —In spite of this, Father Daniello Concina,⁵ in accordance with St. Thomas,⁶ where [the latter] says, But if someone were to entrust his money to a usurer not otherwise having the [means] wherewith he might practice usury, or were to entrust [his money] with the intention that he might make a profit more abundantly from it by means of usury, he would furnish the matter for sinning; accordingly, he also would be a participant in the wrongdoing [culpae [*****] ]. This being the case, if such [an individual] depositing [his money] is a participant in wrongdoing, he will not in fact be a participant in a fault other than in the injustice that the money lender carries out.

          But notwithstanding this, it seems to me it must be more truly said that one depositing [his money] may not be bound to restitution. Forasmuch as his action is not hurtful but, on the contrary, obliging to the borrower, since the latter is above all grateful for the deposit of money about which he was distressed, so that he can provide for himself in necessity. — Therefore, having supposed that the borrower be not unwilling in this matter, [and] granting that the one depositing [his money]  may be a participant in injustice, he is all the same not bound to restitution to the extent that he offends against the virtue of justice in general (according to the opinion that we held in the treatise On [the Precept of] Charity, in book II [of Liguori’s Theologia Moralis] , no. 45, [at the paragraph beginning with] the word Tertia, where we said that one offering the occasion of sinning not only injures charity but also virtue, which he persuades his neighbor to injure). The reason is that [the depositor] does not injure justice in particular, namely the personal right of the other [party], and he does not inflict a wrong on him, since [the borrower], in respect of the one depositing [his money], is not unwilling. And in this manner, St. Thomas can be understood.

787. – The 9^th question [is], Whether heads of state, judges, and legal counsellors, who are the causal agency for the payment of usury, may be bound to restitution? — The answer is that they are bound [to restitution], just as those who do not remove usurers from their jurisdictions [locis] are also bound. I should rather say they are excommunicated by the very nature of the fact alone in Clement [V’s edict] Ex gravi, on usury [Council of Vienne], unless for the sake of the public good it might be expedient to permit this. — So [say] Leonardus Lessius,⁷ the Salmanticenses⁸ along with Fernando Castro Palao, etc.

788. – The 10^th question is, Whether, if the usurer be a debtor to you, you may be able to exact usury, which he entrusts to you to be exacted from a borrower? — In the negative. And if you exact it, you are bound to restitution, provided, however, that it be well known to you that it was owed by reason of usury. ^a) — The Salmanticenses.¹

789. – The 11^th question is, Whether servants working with usurious masters may sin? — It is certain that less important servants, those who only draw up documents, count the moneys, deliver a surety, and like [tasks], are not bound to restitution and do not sin. So [say] the Salmanticenses,² Claude Lacroix,³ Tomasso Tamburini ⁴ and Hermann Busenbaum ^a) below, [at] no. 792.

          There is a doubt about those who exact usury and compel payment [and] whether they are bound to restitution?

          Manoel de Sá,^b)  Sylvester Mazzolini (Silvestro Mazzolini da Prierio),^b) Giovanni Cagnazzo da Tabia (or da Taggia), ^b)  Alsonso de Vega, ^b) cited in the Salmanticenses,⁵ although they say that they sin, they nevertheless excuse them from restitution, because they are not truly the cause of the enforcement of payment, or they are only the material and remote [causes]. — The Salmanticenses, however,⁶ along with Fernando Castro Palao, Gregorio de Valencia, Juan de Medina, Juan de Salas, etc. consider [them] to be bound [to restitution], since they truly are unjust causes cooperating very closely. And this seems the more probable with Tomasso Tamburini, ⁷ in case these [individuals] cooperate in a matter disagreeable to debtors, just as it might be if, perchance, they forced [the debtors] into giving payment [and then] would sign the collection receipts. It is otherwise, if in a matter not disagreeable to [the debtors], I mean, if they were simply encouraging them to give payment, or were exacting usury without applied force, because in this [instance] the debtors are not thought to be unwilling. — But I would not excuse from sin one exacting [usury] solely on the basis of [his] being in service.

790. – The 12^th question is, Whether the heirs of a usurer or of another debtor be bound to restitution in solidum [“liable for the whole (debt) or for the entire sum or as a whole or jointly, without regard to anything actually received”]. If the things owed be things relating to a mortgage arising from a contractual right, the common opinion is that all are bound in solidum.

          There is a doubt if the things owed be the decedent’s personal things arising from a wrongful act [delicto]?

          The canonists in company with François Du Bois, Juan de Salas, Luis López, John Major, etc., cited in the continuator of (Honoré) Tournély,⁸ teach that they are still bound in solidum. And they prove this from the [Decretal] chapter ix, [beginning with the words] Tua nos, [under the title] On Usury, where it is said: Sons must be compelled to make restitution for usury by the publicly authoritative coercion [districtione] through which their parents, if they were living, would be compelled. — But | the continuator of | (Honoré) Tournély,⁹ in company with Juan Azor, Tommaso de Vio (Cajetan), Francisco de Toledo, Martino Bonacina, Domingo Báñez, Juan de Medina, Louis Habert, Jean Pontas, Jacques de Sainte-Beuve, etc., says with sufficient probability that these heirs are bound only proportionally, unless they cooperated ^a) in the wrongdoing of the deceased. And it is proved from l. un. C., [Justinian’s Codex, [†††††] at the title], ex delictis defunct., where it is said, It is [a point] of the most unambiguous law that, when one who has caused violence (or financial loss) … has died after joinder of issue [final and formal establishment of the disputed point of law], his successors [are] liable for the whole debt; in other respects…, they are sued in court for the amount [from the estate] that has passed to them. Tommaso de Vio (Cajetan),  (replying to the contrasting [Decretal] text Tua nos, above), gives the reason and says, The sons are bound, just as also the father, namely by the personal obligation of all their goods: but in this there is a difference: that the father is the whole person, and by this he has the whole obligation; however, any heir (to wit, the son) is a portion of that person, and consequently undertakes only a portion of the obligation.

          [Now to] the 13^th question. Here it would also be suitable to ask whether it be lawful to seek a loan from a usurer and to offer that | usury | to him. But regarding this question, enough has been said [in Liguori’s treatise] above On [the Precept of] Charity, in book II [of the Theologia Moralis], no. 47, [at the paragraph beginning with] the word Secunda; and in no. 77, [at the paragraph beginning with] the words 4º. Licitum.

791. – ‹‹ 11^th. To lend old grain with the obligation that new [grain] be restored is usury (especially in a fixed time period), if the lender should know that the new [grain] will be better and of a greater money price. — Sylvester Mazzolini (Silvestro Mazzolini da Prierio), Martín de Azpilcueta Navarro, [and] Juan Gil Trullench.¹

          ‹‹12^th. As a matter of common opinion, it is usury if you should give a loan so that afterward the borrower would be obligated as a result of his private [civili] debt to make a loan back again to you or to sell or to buy goods in your possession in your workshop, or to contract for professional services. The reason is that such an obligation is a thing capable of valuation by a money price, since it debars the borrower from the power of buying [goods] and of contracting for professional services elsewhere. — Leonardus Lessius ^a) [and] Juan Cardinal de Lugo.² See Paul Laymann,³ [and] Martino Bonacina.⁴

          ‹‹ 13^th. It is usury to make a loan to a ruler or to a state, with the consideration that in during the time while it is not paid, you may be free from paying taxes or other just burdens. — Juan de Salas, Juan Cardinal de Lugo,⁵ in accordance with the common [opinion].

          ‹‹ 14^th. Likewise [it is usury] to make a loan on terms that the borrower should exact the money from a debtor of the one making the loan, from whom [the borrower] will not easily wrest [it] away. To which I add that it will not be usury if [the borrower] should assume the burden voluntarily inasmuch as he may be able to get possession of [what is owed] easily. — Ibid. ⁶ and Martino Bonacina.^b)

          ‹‹ 15^th. Likewise, if you should grant as a loan grain that you have in another place, [it is usury] by obligating that it be returned to you in this place or elsewhere (with greater expenses and efforts), where it is worth more. — Ibid. ⁷

          ‹‹ 16^th. It is also usury to obligate the borrower to receive part of the loan in goods that he does not need. — Ibid. ⁸

          ‹‹ 17^th. In a loan involving money, unless it be otherwise agreed, if someone should grant loans, for instance, 100 florins, he cannot exact more than their money price and the value current at that time. Wherefore, if their value at that time should be increased, he cannot demand 100, because he would receive something beyond the principal. But if the value should decrease, the borrower is under obligation to give back more than 100. The reason is that otherwise he would not be making restitution at parity. See Leonardus Lessius,⁹ Paul Laymann,¹⁰ and Martino Bonacina.¹¹ ›› | See no. 782, [at the paragraph beginning with] the word Nevertheless. |

          18^th. However, in a loan of other things, such as wine, wheat etc. the matter is otherwise, because if someone, for instance, should lend ten measures of wheat to another, or [if] the money price should increase or not, he can demand ten [measures]. — The reason for the complete difference is that in the case of money, ordinarily it is not considered otherwise than a money price or value (unless it be differently agreed for settled and lawful reasons). Accordingly, only an equal money price is due to be given back. But unquestionably in the case of grains etc., the physical matter itself is considered, because grain as a loan is not sought after on account of the price of grain but on account of its distinct material composition and substance; therefore, even if its money price should increase, one can demand as many measures as he gave in the loan. In spite of this, certain people occasionally speak about these things in the same way in which [they speak about] money. — See Paul Laymann¹³ and Martino Bonacina. ¹³ ›› | See the things said at no. 782. |

792. – ‹‹ You will ask: What may be obligation and punishment of usurers and those cooperating [with them]?

          ‹‹ 1^st answer. A usurer, even one not manifest, and [his] heirs are bound to make good. — I should rather say, even all those who effectually cooperate in behalf of a usurer: for instance, judges, lords-temporal, notaries, servants, [and] legal advisors, who in any way at all assist or compel borrowers to give payment for usury. [Mind you,] I said positively or effectually, because by being situated negatively they can indulge usurers for a just cause and the neediness of the poor.

          Furthermore, in practice, on the basis of the presumed intention of borrowers, the less important servants are, as a rule, excused. ›› | See what was said above at no. 789, and in book II, no. 78. |

          ‹‹ 2^nd . A public or notorious usurer ought not to be admitted to the Communion of the altar, nor absolved, until he should give back the usury, and [he ought] not to be buried in a hallowed spot; and he who knowingly buries [him], by virtue of the fact alone, has been excommunicated. ^a)

          ‹‹ 3^rd. Paul Laymann¹ adds that, by operation of law, his will is null and void, unless he made restitution before his death. ^b) See Leonardus Lessius, Martino Bonacina, [and] Juan Gil Trullench. ² ›› — | Likewise usurers are infames [lit., “disreputable, publicly disgraced, disgraceful” persons [‡‡‡‡‡] ]. Salmanticenses.³ |

TRANSLATOR’S NOTES

[*] The Decretals (Liber decretalium Gregorii IX or Liber extravagantium decretalium, or Liber extra”) denominate Raymond of Peñafort’s compilation of papal laws, which was commissioned by Pope Gregory IX and published in 1234. They stood as the principal canon-law authority until promulgation of the 1917 Pio-Benedictine Corpus Iuris Canonici.

[†] Under the Roman legal principle of usucapio, acquisition of ownership by length of possession, “just title,” one of the requirements for usucapio under the civil law, means “just cause” (legally sufficient reason).

[‡] Obligation, obligatio, “is confined, in Roman law, to acts which are reducible to a money value” (Sohm’s Institutes of Roman Law, 2^nd edition. Translated by James C. Ledlie. Oxford: The Clarendon Press, 1901, p. 380). According to Justinian’s Digest (44.7.3), “The substance of an obligation consists in binding (obstringere) another person to give us (dare) something, to do (facere) or to perform (praestare) something” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953).

[§] Munus ab obsequio, “real remuneration,” may be, for instance, an act requiring the exercise of the body or some kind of offer of respectful behavior; munus a lingua, “oral remuneration,” may be, for instance, an act of praise or offering of prayers for someone.

[**] The Latin text prints the dative cui (‘to whom”), a reading rejected by the standard critical Leonine Edition (1888), which reads qui, the nominative (“who”). The Latin texte de la tradition parisienne reproduced in the 1925 Éditions du Cerf (Desclée & Cie.) Somme Théologie confirms the Leonine reading, which the translator has herein adopted.

[††] “A mons, according to the definition of Pope Julius II, was a fund into which a considerable sum of money had been gathered and from which the poor and needy persons were aided by loans in proportion to their requirements, after appointed officials had investigated their need and had received their pledges as security” (A. Parsons, “Bernadine of Feltre and the Montes Pietatis,” Franciscan Studies, March 1941, p. 11). The Friars Minor established monti di pietà (municipal, clerical pawnshops) in the 15^th century as a protection against exploitive usurers.

[‡‡] The “Petrocorensis” here et passim is not a theologian but a moral theology textbook approved for use at the seminary of Périgord, France. There were multiple editions of the work in the 18^th century.

[§§] A damnum emergens is “[a] real factual loss which one suffers in his property, a loss which can be evaluated in money (pecuniary loss)”; lucrum cessans, is “a loss of reasonable profit…. the distinction between two kinds of losses is classical” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953).

[***] The medieval and early modern citation style of the Digest (Lat. Digesta, lit. “matters systematically arranged”) differs from that recommended in today’s The Bluebook: A Uniform System of Citations, viz., by book number, chapter (title) number, item number, jurist, jurist’s work, book number of jurist’s work. E.g, the cite above in the text now would read Dig. (or D.) 46.8.13 (Paulus, Ad Edictum 76). The jurist and his work are often omitted in scholarly citations. In the older citational format, as in the text above, the siglum “ff” indicates the Digest, and “l” stands for lex, “law.” The chapter (title) caption is usually abbreviated (here Rem ratam hab[eri et de ratihabitatione, lit. “that the matter is held confirmed and on ratification”]), and usually the first word of the item (termed “fragment”) also appears (but unnecessary here likely owing to the brevity of l. 13). Other examples are found on pp. 23 & 24 herein. (See footnote §§§ for additional details.)

[†††] In Roman law, “[c]ertain contractual relations …are dissolved by the death of one of the parties…; the death of the debtor extinguishes his obligation if it had to be fulfilled by him as a personal performance” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953).

[‡‡‡] A gloss is a short marginal or interlinear explanation of the meaning of a legal or Biblical text. The 11^th and 12^th scholarly commenters on Roman law were called glossators. In the 13^th century, the jurist Accursio, or Accorso,da Bagnolo (Latinized as Accursius) of the University of Bologna compiled 97,000 scholarly glosses on the texts of the Byzantine Emperor Justinian I’s Corpus Juris Civilis (“body of civil law”). The Digest (also called the Pandects (Lat. Pandectae, from the Gk. πανδέκτης, lit. “all-receiving,” “the book containing everything”), composed of fragments or extracts from the works of Roman jurists and representing the most important part of the Corpus, had been rediscovered in 1070 or 1135. Accursio’s redaction is known as the Glossa magna (“great gloss”) or the Glossa ordinaria (“normal or regular or standard gloss”) or the Glossa magistralis (“schoolmasterly gloss”), which for half a millennium remained the foundation of European law.

[§§§] A statute passed in the 3^rd century BC by the assembly of the plebs that concerned damnum iniuria datum, “financial loss caused by a legally wrongful act.” It provided compensation to owners of property physically damaged through another’s fault. Its applicability became more general under Justinian’s judicial reform.

[****] To grasp fully the argument, a deeper semantic understanding of Latin syntax may be useful. Liguori’s text uses the conditional particle nisi (“except if, unless, if not”), which indicates that the independent clause (apodosis) of the condition “is stated as universally true except in the single case supposed” (Allen & Greenough, New Latin Grammar, no. 525). Thus, the text says in effect, “I would always intend to conduct business, except in the single case of many borrowers’ soliciting a loan, in which case I would not intend to conduct business.”

[††††] A Roman legal term of art meaning “one who possesses a thing belonging to another, and believes in good faith that he is the owner… When sued by the real owner for restitution of the thing, he loses the case” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953).

[‡‡‡‡]  The lex commissoria (lit., “forfeiture law”) was a usually unilateral penalty clause inserted in “[a]n agreement between creditor and debtor by which the former becomes owner becomes owner of the pledge [in property, goods, etc.] if the debtor fails to pay the debt at the date fixed” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953). Dig. 18.3.1-8 treats the forfeiture clause. Today the term lex commissoria survives as the cancellation clause of a contract.

[§§§§] Lexically, “(A contract) of substitution of usufruct for interest” (Liddell & Scott). The form “antichriseos” is a slight mis-transliteration of the genitive singular form of the Greek word ἀντίχρησις, εως (antíkhrēsis,eōs). In Roman law, antichresis (spelled antixrysis in Mommsen’s Latin edition of the Digest) “is the name given to an arrangement between the pledgor and the pledgee by which the latter not only obtains possession together with a right of sale, but also the right to take all the fruits and profits yielded by the thing, such fruits and profits to be accepted by him in lieu of interest” (Sohm’s Institutes of Roman Law, 2^nd edition. Translated by James C. Ledlie. Oxford: The Clarendon Press, 1901, p. 377). “The creditor might lease the property, live on it, or use it otherwise. He kept possession until the debt was paid” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953). See also Dig. 20. 1.11.1

[*****]  Under Roman Law dealing with delictual matters, culpa = “a fault of a guilty wrong doer for which he is held responsible (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953)

[†††††] The first of the four books that comprise the Corpus Juris Civilis (“body of civil law”). The Codex (=collection of imperial enactments), published in 534, was later subsequently lost in the West, but was substantially restored by the end of the 12^th century and later augmented in the 16^th century. The modern format for Liguori’s citation is Code Just. (or CJ.) 4.17.1 (Codex of Justinian, Book 4, Title 17, Law 1). The Bluebook standard requires the relevant emperor’s (s’), here Diocletian and Maximian, and the year(s), here 294, to included, but these elements are frequently omitted in scholarly articles.

[‡‡‡‡‡] In Roman law, the sense is stronger than nowadays in the English-language cognate “infamous.” According to Justinian (Dig. 3.2.0), infames are “those who are marked by ill repute (qui notantur infamia).”  The condition of infamia often entailed legal disabilities, and “[u]nder specific circumstances, infamia was not without repercussion in the rights of [testamentary] succession” (Berger, Encyclopedic Dictionary of Roman Law. Philadelphia: The American Philosophical Society, 1953). Some examples are dishonorably discharged soldiers; stage players; brothel-keepers; vexatious litigants; thieves and convicts; prevaricators; a father-in-law who gives in marriage a widowed woman under his paternal power, who has not completed the mourning period for her husband; and like miscreants.

Source: Opera Moralia Sancti Alphonsi Mariae de Ligorio: Theologia Moralis, Editio Nova, Tomus II, ed. by P. Leonardi Gaudé (Rome: Ex Typographia Vaticana, 1907), pp. 203-232. Imprimatur 1953. Translation into English by Novus Ordo Watch.

Note: An electronic copy of the original Latin work is accessible through Google Books here.

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License: public domain