Question VII: Whether, and how, gain acquired from usury is to be restored

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

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

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

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

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

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

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

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

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

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

As to the gain emerging from the accretion.

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

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