Question XV: Whether an oath extorted by injury, such as an oath to pay usury, binds

It is most certain among all that an oath of this kind binds. For so it is defined. lib. 2. Decret. cap. Debitores: debtors are not to be compelled to pay the usuries to which they had bound themselves; but if they have sworn to their payment: They are to be compelled to render to the Lord their oath.

The reason of D. Thomas 2. 2. quaest. 89. art. 7. ad 3. is, because, although an obligation does not arise to man, because through injury he acquires no right; nevertheless it is acquired by God, brought in as witness, insofar as he is bound to render God as a truthful witness of his promise, just as he was invoked, if the promise can be fulfilled without sin. Which reason is also general in D. Bonaventure in 3. d. 39. in the last question, in the arguments, and in the body, and more clearly in the same art. 3. quaest. 2. in the body. Now such is the payment of usuries; and if the usurer sins in receiving, the swearer does not sin in paying.

Yet truly this reason does not seem sufficient, for by the common consent of Theologians, the matter of the one swearing ought to pertain to some virtue, in order that a promissory oath bind, as I said in quaest. 13. but no virtue is found in this act: Therefore it will in no way bind.

Cajetan 2. 2. quaest. 87. art. 7. whom Soto follows lib. 8. de Iustitia, quaest. 1. art. 7. Aragon 2. 2. quaest. 89. art. 7. ad 7. conclus. 2. Valencia d. 6. quaest. 7. puncto 4. num. 1423. say that it is an act of charity toward oneself, for the one paying redeems the vexation inflicted, just as also he who promises to an urgent robber, and pays the promised money, redeems the vexation inflicted; and although at the time of payment he may be safe, nevertheless the end is still to redeem the vexation begun at the time of the promise.

Yet this reason in our case does not seem solid; for vexation is unjust coercion; but a usurer unwilling to lend is not unjust. For only in a case of necessity is he bound to lend; and that neither by justice, but by charity. Therefore a promise of paying usury is not to redeem a vexation, since none exists.

Sanchez therefore ANSWERS that that payment is an act of the great virtues of truth and fidelity, even when the promise of itself would not otherwise bind: It is also an act of preserving one's own reputation and honor, by standing by promises even in unjust extortions. But these suffice for gracing the sworn payment, although they do not suffice for binding without an oath.

Another objection against the reason of D. Thomas and D. Bonaventure seems to arise, because in cap. Debitores it is defined that they are to be compelled to payment who have sworn usuries. And thus many hold with Sanchez num. 7. that a right is acquired by the usurer, and therefore that he can by a right of action compel the swearer to stand by his promises.

Yet truly the text itself declares that the obligation is contracted with God, not with men; for it says: They are to be compelled by the Lord, that is, by God, to render the oath. And thus a Judge ex officio ought to compel him who has sworn, to fulfill the obligation contracted with God, but not at the instance of a party asserting a right of action. So Sanchez num. 8. citing others.

But he satisfies the obligation of this oath by momentary payment, and at once, without any relaxation of the oath, what has been paid can be reclaimed; it is had in cap. Ad audientiam, de his quae vi, there: Notwithstanding the aforesaid oath, by which he was bound not to reclaim, but only to resign. So the Gloss notes there, Hostiensis, Ioannes Andreas, Antonius Anchar, Abbas, and other Canonists, Suarez in that lib. 2. cap. 9. numero 16. Lessius lib. 2. de iustitia, cap. 17. d. 7. numero 51. et cap. 42. dub. 6. numero 27.

You will object first, against the principal assertion, namely that he is bound to pay the sworn usuries. If the principal obligation does not subsist, the accessory also collapses, Rule cum principalis, ff. de regulis iuris; and the oath is added to the promise of paying usuries; but the promise does not bind, as all confess: Therefore.

It is ANSWERED with the Canonists ad cap. Debitores, when an irritant cause of the principal concurs in the accessory, the accessory collapses with the principal; otherwise when it does not concur; for then the principal collapses while the accessory stands, which happens here; for the principal promise is invalid on account of the turpitude of the extorter, which is not found in the order to God, in respect of which alone the oath binds.

He ANSWERS secondly, Covarruvias de pactis, 2. part. §. 3. that this oath is not accessory to the promise, nor is it brought in to confirm it, but it is principal and standing per se, binding to fulfillment, lest God be a false witness of that promise.

You will object secondly. If this oath binds under mortal sin: Therefore a simple promise will bind under venial sin against truth; for the oath supposes it, it does not induce it.

It is ANSWERED, that both promises require truth of the present, that is, that when one swears, the will to fulfill be present; but as to truth of the future, the defect of truth is not always bad, indeed it is often good, as when a bad thing is promised.

You will object thirdly. When certain things are joined by some medium, with the medium removed the union of the extremes is taken away; but the oath and its obligation are united through the promise mediating, which is invalid: Therefore.

Sanchez ANSWERS, denying the minor, for they are joined by those media, whether they bind or not. This answer seems not to solve the difficulty.

Therefore it is ANSWERED, denying the minor, because they are joined of themselves, since the promise brings no bond.