Question VIII: Whether the contracts called stocolia and barocolia in Italian, and mohatra in Spanish, are lawful

This contract is of such a kind: Titius asks 100 gold pieces on loan from the merchant Claudius, who does not wish to give money, but exhibits goods to the value of the summit price of 100 gold pieces, that he may sell them for money counted out and satisfy his need; but the buyer Titius immediately offers those very goods to the merchant Claudius himself, who buys the same goods at the middle, or lowest price.

HERE at first sight flabby usury is evident. Therefore by the laws of Castile and Portugal they are interdicted under grave penalties; accordingly they assert it to be usury: Rebell. 2. p. l. 9. quaest. 7. num. 7. Medina l. 1. Summae, cap. 14. §. 23. D. Antonin. p. 3. tit. 8. cap. 4. §. 4.

OTHERS, however, with conditions appended attempt to redeem it from usury. The first is, that one stand within the just price. Another, that all scandal be removed, by explaining that in such a contract there is no iniquity, since it always stands within the limits of the just price. So Nauar. cap. 23. num. 91. Petrus e Navar. l. 3. cap. 2. num. 170. Homobon. in Exam. p. 2. tract. 9. cap. 10. Regius in suis resol. casu 14. and 34. Summa Corona, p. 2. cap. 7. Less. l. 2. cap. 21. dub. 16. num. 130.

NOR does it avail to object that there is deceit, since the seller and the buyer are the same, because if another can buy at that price, why not also the merchant? Indeed the seller is freed from the care of selling through the Broker. Yet he cannot compel this, nor have a pact about it, as Graff. p. 1. l. 1. cap. 209. Bonac. de contract. disp. 3. quaest. 3. p. 3. num. 20. Baffaeus num. 4. notes.

Some ADD another condition, that this sale not be made with the intention of buying back at a cheaper price. So Molina T. 2. disp. 310. Angel. v. usura, n. 60. Lopes l. 1. de contract. cap. 34. Vegha in Summa, T. 2. cap. 131. cas. 62. Azor. p. 3. l. 8. cap. 11. and Fagundez l. 5. cap. 34. num. 2. seems to approve.

BUT Salas de empt. disp. 37. and Diana p. 1. Tract. 8. resolut. 58. reject this third condition, because where nothing beyond the capital is drawn into the pact, nor hoped for as a premium, or a debt of justice for the loan, there is no usury, if an increase is intended, as Molina wishes, T. 2. disput. 305. Valentia disp. 5. quaest. 21. p. 1. Nauar. de restit. lib. 3. cap. 1. dub. 2. num. 19. and the same Salas tract. de usuris, disput. 5. numero 5.

I confess this contract stinks to me, because no foundation of this gain is present except usury, and the very thing which does not belong to the one gaining, and it is usury in hope, as the holy Doctor argues in speculo animae, cap. 2. §. the third fruit is principally of injustice. Just as usury is manifest when the promise intervenes by pact, as the holy Doctor notes.

Nor do many Casuists defend it soundly, pretending with empty subtleties that there is nothing evil if the merchant sells his own goods, if he buys them from another, and the prior seller buys them back; since he is not here in a worse condition than the other merchant, who can buy them. I say, they do not soundly urge these things, since moral matters are not to be handled so that the individual circumstances are examined separately; for even to touch another's goods with the hand is harmless; and to handle them with a closed hand, and finally to leave the house, has no fault; but join these, and it is theft. Similarly, to sell, to buy, and to resell are innocent; but if they are done so that the seller gives a horse to the Young man for 100 gold pieces, with some time agreed for payment, and the Young man gives the horse back to the seller for 60, in money counted out: who will be able to vindicate such a contract from usury, at least in hope?

Avarice has devised other similar contracts, which see in Fagund. 2 cap. 34. Molina disp. 362. Rebellio l. 9. quaest. 7. num. 7. Bassaeo loc. cit.

I set out one that is frequent. Certain rich men give flocks of sheep, or herds of cattle, to some shepherds or herdsmen, that they may pasture them, demanding the wool in part, but leaving the milk, cheese, and lambs, yet so that they perish for the shepherds, meanwhile perishing.

Others buy, e.g., a hundred sheep at the common price with money counted out. But with a pact that they be kept unharmed until the month of June; meanwhile demanding all the fruits of milk, wool, etc.

I say with D. Bonav. in speculo animae, cap. 2. loc. cit. that it is tacit usury, when someone has something in common with another, whatever it may be, and the danger, or loss, is not in common; Fagundez lib. 5. cap. 34. num. 15. Molina T. 1. disp. 362. subscribe.

The reason of D. Bonau. is clear, because the thing, just as it bears fruit for the Lord, so also perishes for him.