Question II: Whether, and how, other contracts can be united with the contract of partnership

FIRST, it is certain that in a partnership all contracts that are just can come together.

SECOND, it is held to be certain, says Valentia, that by the law of nature one may enter with another partner into that other contract of assurance of a certain lesser gain for a share of the greater gain hoped for, provided, however, that he takes the risk upon himself and retains it. The same is the judgment of Conradus q. 96., although he concludes that it involves risk.

FOR MY PART, I do not approve of this contract, even if the usurious intention of lending be absent, and the dominion of the thing indeed retained, and the risk too (as the Saintly Doctor requires as necessary, cap. 2. speculi animae;) for thus, according to the probability of the hoped-for gain, to impose upon the other partner the burden of assuring the other part of the gain for a share of that gain (even with his consent) is a hardship, not sufficiently well divided by equity among the shares; Nevertheless I do not entirely condemn this manner of contracting.

THE CONTROVERSY, however, is: whether besides the contract of partnership and the contract of assurance of the lesser gain that is hoped for, Peter, for example, who puts one hundred into the partnership, can also at the same time conclude with Paul his partner a contract of assurance of the capital, for a share of the hoped-for gain as well; We speak, however, according to the law of nature.

IT WAS the opinion of Accursius leg. si non fuerint, ff. pro socio, of Panormitanus in cap. Per vestras de donat. inter virum, et uxorem, whom Sotus follows lib. 6. de Iustitia, quaest. 6. art. 2., denying that this can be done.

THE OPPOSED opinion is that of Ioannes Maioris in 4. dist. 15. quaest. 49., who testifies that this opinion was defended by the most learned Ioannes Echius at Bologna; Gabriel ea dist. quaest. 11. dist. 10. Conradus quaest. 97. Sylvester ver. Societas, quaest. 2. Couarruvias lib. 3. var. cap. 2. Nauarrus in manuali, cap. 17. num. 254. Angles in 4. quaest. de Societate, Caietanus opusc. 17. responsionum, resp. 11. Valentia disp. 5. quaest. 24. puncto 3. These, besides the two alleged above, say that this third contract also can be joined in a partnership. Tanner subscribes with others, disp. 4. quaest. 7. dub. 8. He concludes that this opinion is approved everywhere by most learned men, at number 211. So also Bassaeus.

IT IS PROVED from cap. Per vestras, extra, de donat. inter virum, et uxorem. If with a husband verging on poverty, and not having sufficient security for preserving his wife's dowry, the dowry is exposed to peril, such a dowry is commanded to be given to some merchant for trading, that it may of course be safe with him, and from it, intact, the burdens of matrimony may be sustained. This cannot be done except by those three contracts made with the merchant, as Nauarrus noted above, and Ioannes Andreas on the said chapter Per vestras. Likewise by leg. si non fuerent. ff. pro socio, and by the opinion of Cassius it is said that a partnership can be so entered into that neither party feels any part of the loss; but the gain is common. See Valentia, who says this opinion was approved at Rome by many most learned Theologians.

Therefore this contract can be so made that Peter gives the merchant a large sum of money with the pact that the merchant receive at the end of the year, for example, five or six per cent, assuring the Capital for a share of the hoped-for gain. Nor indeed is this a loan, or usurious gain from a loan, as Caspensis notes sect. 10. and Valentia in the place cited.

You will object the Bull of Sixtus V, which begins: Detestabilis avaritia, and prohibits a partnership made with an assurance of the capital.

Caspensis answers it is to be understood of an assurance made without the burden being compensated at a just price, or of a partnership in which no other just contract is mixed in, as Reginaldus notes l. 25. num. 490. Bassaeus v. Societas, num. 4.

You will ask, what is given to the merchant for that assurance of the capital,

Filliucius answers, num. 55. tract. 38. cap. 3. that a part of the uncertain gain is given, which in the judgment of a prudent man seems just to all who hope for it, or that something is remitted from the certain gain which he would have; otherwise he would not thereby enter into a contract of assurance, but only of sale of an uncertain gain for a certain one, which would certainly be greater than if, besides, the contract of assurance were also concluded,