Question VI: Whether the payments and commissions that bankers receive are lawful

BY the name of provisions I understand, with Lessius dub. 8. and Caspensis sect. 8. the fee, and gain, which money-changers, and bankers deduct from money to be counted, by reason of the work they render in writing, counting deposited money, keeping it, obliging themselves for another; and managing the business of another.

By immemorial custom in the provision of Exchanges there is due to money-changers a third part of a scudo for every hundred scudi, according to the money on which the exchange is paid, or the assignment made. So Molina disp. 408. Caspensis sect. 8. Boninsignus de Cambiis, cap. 7. Romoald. Cod. de Cambiis, cap. 21. Scaccia de commerc. §. 3. Gloss. 3. num. 12. Scortia in Bullas Pontific. Epitome 107. Theor. 291. Fillincius tom. 2. tract. 33. part. 2. cap. 10. num. 475. and others with those whom Diana reports resol. 6.

THEREFORE a money-changer, or money-broker may take a just fee for the custody of money, and the obligation of returning it. For these things are estimable in price. But if in the name of the depositor he disburses, and counts to another, let him still receive a fee from him in whose name he pays, and whom he serves. So Nauar. cap. 17. numero 293. Caspensis loco cit.

IT IS PROVED by Valentia puncto 3. because the whole is for the benefit of him by whose order the payment is made. Advert, however, that this exaction is licit if it has been stipulated, or if custom obtains. Say the same of the respondents of the money-changer, and of the correspondent, for the same reason.

THERE is a great controversy: Whether this third part of a scudo per hundred is just also in the provisions which are taken in recambes, and continuations.

SOME allege it, because it is taken in all the fairs of the world. So Boninsignus, tract. de Camb. cap. 7. num. 23. and others with Diana resol. 7.

FOR Justice, or injustice of the provisions, one must stand by the judgment of merchants.

BUT others deny it to be licit. So Coli de Camb. cap. 21. Malder. 2. 2. tract. 5. c. 4. disp. 7. and thus Diana counseled the Merchants.

THE REASON is, because provisions are due for labor: but the labor in recambes, and continuations is not the same as in real Exchanges: Therefore.

SOME answer that the money-changers ought not on that account to desist, because they would labor in other new Exchanges, if the correspondents paid.

OTHERS answer, that gain is due also by reason of the peril of losing the principal; and it can happen that the perils are greater in the continuation, because with the passage of time the correspondent can become worse off, and at last go bankrupt. Therefore the provisions ought to be unequal.

NOR does Scortia satisfy, saying that an equal provision can be taken for unequal perils, because the perils are uncertain.

But I suppose that uncertainty must be computed; but uncertainties are unequal. Moreover there are some perils that are certain; and therefore I add too, that a greater quantity makes a greater peril, and so one to be paid for.

IT SEEMS that the holy Doctor, ad cap. 2. Ioan. in ea verba: Invenit in Templo nummularios, etc. reprobates these receipts, which he proves from that Ezech. 22. Usuram, et superabundantiam non accipies. The reasons indeed adduced prove so to me.

BUT Romoaldus Coli warns gravely in tract. de Cambiis, cap. 21. that two provisions must not be received, one in the place where the Exchange is made; another at the fairs, for the agent himself.

YOU WILL ASK first. Whether one provision is due for an Exchange great, and small. Diana resolves this resol. 10. Caspensis num. 40. wishing a greater to be given for a greater Exchange.

I WONDER that this is debated, given those things taught before, namely that by immemorial custom it is observed that a third part of one per hundred be given. Therefore Scortia says epit. 107. Theor. 291. that if the sum of the Exchange be one million, the gain of the provisions will be 3333. This pleases Coli tract. de Camb. cap. 21. Scavia de commer. §. 3. Gloss. 3. num. 471.

YET Diana urges against it, because Notaries too, in drawing up a deed of the same labor for a great sum, receive a greater stipend. Some add that it is due by reason of the peril, which is greater in a greater sum of money exhibited.

YOU WILL ASK secondly: Whether the custom of the money-changers of not accepting payment of the principal, unless at the same time the damages of the Exchanges be paid, be licit.

Diana answers resol. 12. asserens, adducing Lessius lib. 2. cap. 23. dub. 10. num. 87. Salas tract. de Camb. disp. 65. Filliucius tom. 2. tract. 35. part. 2. cap. 10. num. 472. Malderum 2. 2. tract. 5. cap. 4. dub. 10. Therefore a money-changer, to whom by chance ten are due as principal, but three for interest, and provisions; when in the computation he receives three, may take them in satisfaction for the interest, and provisions, and is not bound to deduct the three from the principal.

You will ask thirdly: Whether a money-changer, who in good faith gave Peter money to be paid by exchange at Rome, thinking him to have money in such a place, and afterwards discovers that he had it not; can exact as much gain as he would have received, if the correspondent had paid at Rome.

I suppose, that if he did this in bad faith, it would be usurarious, because with no title except the delay would he exact a premium.

To the question Lessius answers affirmatively dub. 7. num. 69. Molina disp. 404. and Diana resol. 14. and Caspensis judges it probable sect. 8. num. 41.

You will ask fourthly: Whether a money-changer can stipulate from the beginning with the correspondent a certain, and determined interest, even in the case of non-payment.

Filliucius tom. 2. tract. 35. part. 2. cap. 7. num. 424. Homob. de exam. part. 2. tract. 9. cap. 15. quaest. 4. and others deny it, Pius V. forbidding it.

But indeed, since the Bull is founded on the presumption of usurarious fraud, it will avail in the forum of conscience, if it be morally certain that that interest is morally just. So Lessius lib. 2. cap. 33. dub. 11. num. 90. Reginald. tract. 2. lib. 25. cap. 34. num. 467. and others.

But whether in such a case the money-changer sins mortally. Salas disp. 13. Rebell. part. 2. lib. 11. quaest. 13. num. 5. affirm it; but Diana resp. 14. Granado part. 2. contr. 7. tract. 3. puncto 15. sect. 2. Sà verbo Cambium. deny it. The Authors of the first opinion are founded on the decree of Pius V. which does not cease to bind, the fraud ceasing, because it was enacted to remove occasions of sinning, which indeed remain, if liberty be given not to observe it. But others say it does not bind, because when the reason of the law ceases in the particular, the law ceases to bind in that particular.

I will relate the conditions required by Pius V. for an exchange to be licit: First indeed he condemns all dry exchanges, such as those in which, by the intention of the contracting parties, payment is made in the same place; because the one has not money elsewhere. Then in a real exchange he requires these conditions.

The first, that the money-changer stipulate for no gain by reason of the delay. And that this be usury the Doctors assert with St. Bonaventure in the speculo animae, cap. 2. §. tertius fructus principalis.

The second is, that from the beginning, or afterwards, no certain interest be stipulated, even in the case in which payment would not be made at the due time.

The third condition is, that real exchanges not be made by letters otherwise than for the next fair, or, if the fair be not held; the next terms, according to the usage of places; otherwise they will be usurarious. Hence exchanges to the second fair with greater gain are forbidden, not with an equal one, or to the second one by force of the first Exchange. So the Doctors with Bassaeum num. 17.

The fourth condition is, that in establishing the terms of payments regard be had to the distance, and nearness of the places to which payment is destined, that longer terms not be appointed than the distance requires. This Pius V. in the year 1571. with Navar. cap. 17. num. 299.

Lessius adds, however, that in a few places, or perhaps nowhere, at least as to some conditions, does this Decree bind.

You will ask fifthly: Whether the Exchange of custody be licit, by which a money-broker takes upon himself the care of keeping moneys deposited with him, and keeps an account of datum and acceptum, and is ready to restore to those asking it.

It is answered, with Valentia puncto 3. that some stipend can be received for it.

From what has been said you have the titles by which money-changers can rightly take gain in real, local exchanges.

First when the money-changer first receives the moneys, to restore them elsewhere, he can gain by the title of the translation of money, even if it be only virtual, since even there he has respondents. For this is useful to the correspondent, and estimable in price; although for this virtual one less is due to him. So Graff. p. p. lib. 2. cap. 110. Sylvius 2. 2. quaest. 78. art. 4. quaest. 3. Molina tract. 2. disp 403. Bonacina disp. 3. quaest. 5. part. unic. Reginaldus lib. 25. num. 454. et 461. Filliucius tract. 35. part. 2. num. 380. Layman lib. 3. tract. 4. cap. 19. num. 7. Malder. 2. 2. tract. 5. cap. 5. de Camb. dub. 3.

The second title is the assurance of the correspondent's money, and the peril of his own, if he has it not in that place to which it is to be transferred; but if he has it, it is a matter of his industry, or fortune, which is to be esteemed at a price. So the Doctors alleged, with whom Bassaeus subscribes num. 11.

Then, because money present, as lent, is to be esteemed at more than money absent, and the further off it is, the less to be esteemed: Navar. in manuali, cap. 17. num. 289. Azor 3. part. lib. 10. cap. 6. quaest. 4. Filliucius cit. num. 595. Bonacina cit. num. 6. Reginaldus n. 416. Toletus lib. 5. cap. 53. Valentia disput. 5. quaest. 23. puncto 4. Bassaeus num. 12.

Add that the estimation of money is greater in the place where it is given; Syluester V. Usura 4. quaest. 8. Filliucius num. 380. Lessius dub. 4. num. 34. Reginaldus num. 461. Malder. disp. 3. Layman cap. 19. num. 8. Filliucius num. 404. Lessius dub. 6. num. 55. Malder. disp. 4. add another title: the lack of money, and the peril lest it not be restored. Truly merchants esteem lacking their money six months at more than three, because meanwhile they lack the faculty of gaining by it.

Advert that Monopoly of raising the price is unjust, and obliges to restitution of the excess above the just; Toletus lib. 5. cap. 53. Filliucius cap. 7. n. 415. Navar. de usur. num. 59. Sotus de iust. lib. 6. quaest. 12. art. 3. Bonacina cit. num. 36. Salon. de Camb. quaest. 4. art. 2. contr. 23. The abettors also of a monopoly are bound to restitution in solidum, if the principals do not pay, against Molina disp. 345. Lessius lib. 2. c. 21. dub. 20. num. 151. Salon. dub. 38.

A money-changer, giving moneys to one whom he does not trust, can require security, and a pledge, Azor 3. part. lib. 10. cap. 11. quaest. 11. Lessius dub. 8. num. 77. Tolet. cap. 52. Salas disp. 21.

*A money-changer, to whom the correspondent after many ex-*changes, and recambes has handed over a part of the debt, is not bound to compute that part toward the extinction of the principal, but can compute it for interest, and gains. The reason is, because when from some principal debt other debts are born as from a root, as fruits; then if payment be made first, it is held to be made for those fruits: then if anything is left over, it is computed into the principal, as is plain from the practice in the payment of rents, and the payment of the debts of a Society. So Filliucius num. 471. Bonacina de contract. disput. 3. quaest. 5. puncto unic. Lessius dub. 10. Salas de Camb. num. 25. Bassaeus loco cit. num. 12. Which is to be attentively observed.