Question V: What conditions are required for a census

The CONDITIONS of natural law indicated above are those, which are multiplied by others. Tanner disp. 4. quaest. 3. num. 116. lays down four conditions as necessary by natural law.

The FIRST is that the census be founded on a fruit-bearing thing, which in due time renders its proportionate payment, either immediately or mediately, as Medina also teaches quaest. 21. de Usuris. Valencia quaest. 22. puncto 2. who adds with Soto lib. 6. quaest. 5. art. 2. from the common opinion that all the goods of the censualist, and also his very person, are bound to pay such a payment.

The SECOND is, that the census be bought at a just price. That is deemed just which by law, or by the judgment of prudent men, has been so much, considering the present condition of things.

AND indeed in the Empire, for a perpetual Census, or redeemable on the seller's side only, the legal price is five per hundred. But this law set aside, where it is not to be observed, the just price is seven per hundred, as Valencia notes quaest. 25. quaest. 1. puncto 2.

The THIRD condition is, that if the census-bearing thing perish or become sterile, no longer apt to bear so much fruit (without fault of the censualist), it perishes for the censualista, who receives the payment, a special pact of assurance being set aside, as Valencia teaches from the common opinion quaest. 23. puncto 2. Molina Tom. 1. disp. 390. and it is gathered from the Bull of Pius V. de Censibus. The reason is, because the thing perishes to its Lord. Since therefore the censualista is the Lord of the right to the payment, it ought to perish for him. Yet if the census-bearing thing is unfit for fruit for one or another year, the censualist is not freed from paying the payment, provided in the remaining years it bears so much as is necessary to pay the payment. Thus Sà V. census, and Valencia loc. cit.

The FOURTH condition is, that the census-bearing thing not be transferred to another against the will of the censualist, from whom the payment to be paid would be obtained with difficulty and less securely, as Scotus lib. 6. quaest. 5. art. 5. Valencia quaest. 22. puncto 7. Tanner. num. 122. teach. The reason is, because since the Censualista has a right to the census-bearing thing, that right ought not to be made worse by such a sale: They add, that burdens not be imposed beyond the nature of the contract; and if perchance they have been laid down, they must be duly defined by the judgment of the prudent.

FILLIUCIUS tract. 35. part. 2. cap. 1. numero 268. adds, the consent of the Censualista is necessary, and that the right which is sold be founded in a vendible thing. Bassaeus adds num. 3. that it be in the dominion of the censualista, and that if some burden is imposed on the seller, to which he is not bound by the nature of the contract, he be compensated with due payment.

BONACINA disput. 3. quaest. 4. puncto unic. and others lay down three conditions. First, that the one constituting the census have the free faculty of disposing of it. Second, that the census be founded on a fruit-bearing thing. Third, that, if the thing perish without fault of the censualist, the census cease pro rata; for the thing perishes to its lord.

But the JUST price is to be taxed by common estimation and the custom of the place; yet from the nature of the thing in an Irredeemable census, the price ought to be greater than in a Redeemable one, and in a Perpetual one than in a Temporal one, and in a Life one than in one constituted for a certain and determinate time.

AS TO the conditions designated by the most holy Pontiff Pius V.

The FIRST is, that a census not be founded except on an immovable thing. Whence censuses, even personal ones, are prohibited. And so it must be only in an immovable, fruit-bearing, and certain thing.

SECOND, that the payment of counted money be made before Witnesses present, and a Notary, and in the act of the celebration of the instrument, but not before the integral and just price has been received.

THIRD he prohibits anticipated payments.

FOURTH he prohibits all obligatory pacts for fortuitous cases.

FIFTH he prohibits the pact that the seller cannot freely alienate the thing subject to the census, or the paying of a Laudemium for obtaining the faculty of alienating.

SIXTH he prohibits that a pact be made that the Censuarius being in delay of paying be held to interest of lucrum cessans, or to some penalty, or to losing the thing subjected to the census, or to making the expenses of the censualista, an oath intervening.

SEVENTH, that no condition be appended, that he who does not owe some burden pay it, or that a census be instituted over some thing so that it be never augmented.

The EIGHTH is thus: censuses to be created in the future, lest they perish in whole or in part, or be made fruitless in whole or in part, we will that they perish pro rata.

NINTH he rejects irredeemable censuses.

TENTH he commands, that when a census is to be extinguished, it be denounced to him to whom the price is to be given two months before, and after the denunciation, that the price can also be demanded within a year against his will, and where the price is demanded, if he neither willing within two months pays, nor is it exacted against his will within a year.

ELEVENTH, that a census cannot be constituted with a pact of re-selling in favor of the buyer, so that the seller remain bound to redeem the census whenever it pleases the buyer, and moreover, that no other penalty can be imposed on him, in case he should not pay the payment, or for another cause. This condition seems to some to be of natural law; others deny it. See Tanner. disp. 4. quaest. 7. num. 128.

NOTE, that some assert it probable that by natural law a pact of reemption at the will of the censualista is licit, the same price being given back, or the price at which the census will afterwards be worth, as they agree among themselves, provided the burden resulting thence to the seller be compensated elsewhere. Thus with many authorities cited Valencia puncto 6. adding that this was concluded at Rome by the Congregation of Theologians; and Bassaeus says n. 14. that in Germany it is reduced to practice. They prove it, because the contract of sale and purchase is kept intact, and if it is conceded in favor of the seller; why not also of the buyer? Yet this reason is weak, because the burdens of each are unequal. Moreover Pius V. declares him to act usuriously against his decree, and wills it observed in constituting a new census.

FINALLY he decrees that the price once constituted for a census must never be changed. But Casas with Diana p. p. tract. 8. resol. 36. will that it can be bought at a lesser price, if the seller asks it, because ultroneous merchandise depreciates by a third part.

Casas ADDS sect. 7. with Valencia puncto 7. that a census subject to litigation, or difficult, can be bought for less according to the estimation of the danger or difficulties. Bassaeus adds, that it cannot be bought for less where the price has been taxed by the Prince; because it is taxed in favor of the sellers. Thus num. 18. he says that in Belgium they punish those who buy censuses for a lesser price than 16. in each, when they are first created.

He ADDS that it is licit sometimes to buy a census with a pact, that the seller, if he should wish to redeem it, be held to redeem it with the same coin, provided however there be no fraud in the future mutation of the coin, because it would be known to him that at such a time it was to be changed to the loss of the other. But if the buyer knew it was to be augmented at that time, and wished to reserve it to be spent on that; the pact will be licit. See also Bonacina disp. 3. quaest. 4. num. 36. Salas disp. 24.

THAT it is LICIT also to buy a census for a certain time, so that within it it cannot be redeemed, Medina teaches de usur. quaest. 15. disp. 1. Covar. lib. 3. var. cap. 8. Bassaeus num. 21. and 22.

THAT it is LICIT also to make the pact, that the census cannot be redeemed in parts, Toletus teaches lib. 5. cap. 45. Azor 3. part. lib. 10. cap. 13. quaestio 6. Lessius lib. 2. dub. 11. num. 68. Bassaeus num. 24. and indeed not irrationally.

IN a Reservative census they add it is possible, that if the payment has not been paid for two or three years, the thing subjected to the census fall into commision, and in punishment of negligence become the property of the lord of the census. In the Consignative contract, however, they assert the allegati, that this pact is not licit, unless it be compensated equitably by the price of the census being augmented; at the judgment of the prudent.