Question III: Whether a contract by which, the capital being secured, a certain fixed gain is received each year is lawful

Doctors who undertake this contract enumerate many titles, both just and unjust,

THE FIRST is just by reason of lucrum cessans.

THE SECOND is, if a partnership is entered into with the pact of assurance of the capital, and of sale, for example, of the gain of five per cent for the greater gain hoped for, which is left to the partner in compensation for burdens of this kind, whether those pacts are made with an explicit intention, or implicit, as I said in question 2.

THE THIRD is, if a real census is bought with the pact of redemption and assurance on both sides.

THE FOURTH, if, without an express determination of a contract of partnership, or purchase of a census, or of interest of lucrum cessans, or damnum emergens, with a certain general intention, having made a choice of the person with whom he contracts, his partner also consenting, he wishes to gain those five per cent in some manner at last, which, the circumstances of the persons and of the fact having been considered, by the judgment of experts could justly be done.

LEDESMA adds a fifth just title, p. 2. tract. 8. cap. 35., because he who gives money for that time deprives himself of his liberty, and takes upon himself the burden of not reclaiming that money for that time, which indeed is estimable at a price, and consequently some gain can be taken from it for that without the vice of usury; which opinion Diana seems to approve, p. 1. tract. 8. resol. 48., against Molina T. 1. tract. 2. disput. 308. Laymann l. 3. sect. 5. tract. 4. cap. 16. Turrianus 2. 2. q. 2. disp. 61. dub 3. Salas de Usura, disp. 9. Lessius lib. 26. cap. 20. dub. 14.

Yet to these last the Saintly Bonaventure seems to nod assent, in speculo animae, cap. 2. at the end; For, not to reclaim a loan for so long a time does not detract from the nature of a loan, and is a condition common to all loans, and consequently, since from a loan no gain can be given without usury, it follows, etc. Hence in §. tertius fructus principalis; he condemns such a loan. Bassaeus approves, v. Societas, num. 4., and others cited by him. Hence such gain was condemned by Alexander VII, as we saw, while treating of the Acts of Man, disp. 17. quaest. 10. sect. 40.

But suppose we were to admit such a deprivation as estimable at a price; nevertheless to demand for it annually seven, or even nine per cent (as very many do), exceeds measure. The reason of this is, because if real exchangers are granted alone that they may demand so much, nine per cent, and this by reason of lucrum cessans, and those who enter with the same men a contract of partnership, seven, provided the conditions assigned above are present, and to both is common the lack of money, the deprivation of liberty, and the obligation of not reclaiming the principal within a year; how can these men demand a like gain, not by reason of lucrum cessans, for there is none, nor by reason of the partner's risk, which is also absent, because they not only give money, but moreover receive a mortgage, or pledge equivalent, for security.

THERE are therefore many unjust titles assigned by Valentia disp. 5. quaest. 15. p. 1. et 2. and Caspensis sect. 11.

THE FIRST is, if anyone gives a sum of one hundred, and from him to whom he gives it, for that reason receives five beyond the hundred; because that man uses the money for his own advantage. For this is usury, nor is it sufficiently covered by the cloak of piety by saying that it is given to the wretched to relieve necessity, as D. Bonaventure says, loc. cit.; but who is there in our age affected with so great a piety?

THE SECOND unjust title is, if, although there be not present the mind of receiving that gain on account of the use of the money lent, and without any other probable title, he nevertheless takes that gain, as Caspensis notes with D. Bonaventure, loc. cit., who gravely admonishes all these men to remember that God is the searcher of the innermost heart.

THE THIRD is, when under the pretext of applying the rules of justice, which are the touchstone (lapis Lydius), falsities appear; and in this what is intended must be examined.

I DISPOSE of the matter here most briefly, since I have seen nothing more in the Seraphic Doctor on this subject,