Question III: Which things can be sold

I SAY first, that a free man cannot be sold. Therefore if he is sold in bad faith as a slave, the seller is bound to the buyer for the price, and for all profit ceasing and loss accruing, and the sale is void of itself. If, however, he sold in good faith, thinking him to be a slave, the sale is void; yet he is not bound for the damages. See Molina tract. 2. de Iust. disp. 340. Lessius lib. 2. cap. 14. dub. 13. num. 19. Tannerus disp. 4. quaest. 7. num. 55.

HERE a doubt arises: Whether he to whom you have given your thing to sell can retain something of the price; as if you give him a horse, saying: sell it for at least forty gold pieces, and he sells it for forty-two, can he keep those two gold pieces; or if I have given a garment saying, if they give you ten gold pieces, give it; and he received twelve.

I SAY that he is bound to give the whole to the seller, because he acquires no right in the price, neither by reason of the thing sold, which is another's, nor by reason of the labor, which I suppose is not esteemed so much, even though it be agreed that a reward for his labor be paid.

IT IS ALSO DOUBTED: whether anyone can buy a chirograph containing a credit for a lesser price than the writing attests, on account of the anticipated payment; as if I hold a chirograph for a credit of one hundred gold pieces against John at S. Martin's: whether Peter can now anticipate in the month of June and buy the chirograph for ninety-five gold pieces.

I SAY first that it is usurious, on account of the deferral alone, apart from a cause of profit ceasing or loss accruing, to buy such credits for less. So the Doctors commonly hold, with D. Bonavent. in speculo animae, cap. 2. §. the second branch of the principal vice of avarice, etc.

I SAY second: if the chirograph contains a credit that is difficult and liable to litigation, you may buy the credit for less on account of these difficulties, in the judgment of a prudent man. Also by reason of profit ceasing, or loss accruing, you may buy these credits at a lesser price. So Valentia quaest. 20. puncto 2. §. concl. 5. Lessius lib. 2. c. 21. dub. 18. num. 65. Navar. cap. 17. num. 231. Tanner. dub. 4. quaest. 7. num. 46. Medina Cod. de restit. quaest. 38. D. Antonin. 2. tit. 1. cap. 8. §. 3. and 4. Molina disp. 361.

THE REASON is, because those difficulties diminish the price of the credit, and the labors spent in overcoming those difficulties demand a price. The same reason holds for profit ceasing.

THE WHOLE difficulty is, what is to be done when none of these applies.

THE FIRST opinion grants that they may be bought for less for these reasons. First, because such chirographs are esteemed by the judgment of prudent men at less than the value of present money; but the just price is that which is judged by the judgment of prudent men, as Couar. lib. 2. var. cap. 3. teaches, and others cited in Fagundez lib. 5. cap. 16. num. 11. and Tannerus above. Bellarmine is cited among them.

FURTHER, because he who buys those chirographs buys a right to recover the money they contain, leg. minus, ff. de regulis iuris. This right, throughout the whole time it is not paid, is useless and sterile to the buyer.

THIRDLY, otherwise the purchases of personal rents would be iniquitous, which are received in many places. Others subscribe with Diana part. 1. tract. 8. resol. 49.

THE SECOND opinion wholly denies that in that case credits can be bought for less. So Medina Cod. de restitut. quaest. 38. Sotos lib. 6. de Iust. quaest. 4. art. 3. ad 3. Sylvester V. usura, 2. quaest. 14. Gabriel. 4. dist. 15. q. 11. dub. 14. Lessius lib. 2. cap. 21. dub. 8. num. 21. Rebell. 2. part. de oblig. iust. lib. 5. quaest. 13. Angelus V. usura 1. num. 63. Molina Tom. 2. disp. 361. Fagundez lib. 5. cap. 16. num. 13. Tanner. loco cit. Valentia supra, Sot. lib. 6. quaest. 4. art. 1. Bassaeus, V. emptio, num. 18. though he does not refuse the opposite.

THE REASON is, because there is no foundation for this gain, and it opens the way to disguised usuries; for that right does not bring, as is supposed, any loss in that deferral of the real acquisition of the thing.

AS FOR the works to which we are bound by justice, I have already shown in the disp. de Iudice that they cannot be sold. See Molina Tom. 1. disp. 89. and Lessius lib. 2. cap. 14. dubio 8.

SIMILARLY, the works to which we are bound by vow are unsellable, because by these the one vowing is bound toward God by a kind of justice.

SAY the same of the works owed to a Prince, or Prelate, by virtue of obedience. They can, however, receive stipends for their sustenance, as D. Bonavent. notes, ad 3. Lucae on the words: Contenti estote stipendiis vestris.

SIMILARLY, neither can they receive payment for works commanded by the Church. See Molina disp. 91.

AS FOR prostitutes, although they receive a price validly and justly, and without obligation of restitution, it is indeed a payment for labor, yet they do not receive it licitly. Wherefore it is a sin, not against justice, but against the sixth precept, not to commit fornication, as D. Bonav. notes, in 4. dist. 15. p. 2. art. 2. quaest. 1. ad 4. Fagundez l. 5. cap. 18. num. 21.

AS FOR works of mercy outside the appointed time, when we are compelled by precept, such as teaching even Theology, serving the infirm, etc., they can be sold; for not all things spiritual are invisible, but those which are from the Holy Spirit. These, to be sure, are sold simoniacally.

AS FOR sacred things, they cannot be sold. See Fagundez l. 5. cap. 19. but we treat of this below, Tract. de votis, disput. 12. quaest. 3. They can, however, be sold by reason of the material, as Tanner. num. 55. Azor. T. 3. l. 8. cap. 5. quaestio 1. notes, according to the C. Ligna, de consecrat. dist. 1. can. Aurum, and can. Apostolicos, and can. Sacrorum, 12. quaest. 2. on which matter I spoke briefly, tom. 4. disp. 17. quaest. 10. ad proposit. 22.

AS FOR entering Religion, although to receive something for entering religion on account of a price is simoniacal, nevertheless a price for food and clothing can be received. See Less. l. 2. cap. 35. dub. 12. num. 71. Suarez T. 1. de relig. l. 4. cap. 17. with D. Thom. in 4. dist. 25. quaest. 3. art. 3. quaest. 1.

THE REASON is, because what is sold is the temporal, not the spiritual, nor is there any decree forbidding it. If, however, the monastery is wealthy, then the interpreters of law commonly cry out that it is simony; and it is gathered from the chapter Tua nos, de simonia; and the C. veniens ad nos, and the chapter dilectus 2. of the same title.

There REMAINS labor in spiritual works. Many distinguish labor as intrinsic and extrinsic. The intrinsic is that which is morally included in the sacred action, as the labor of a priest in singing Mass, of a preacher in preaching. The other is extrinsic labor, for instance in going to a remote place to preach or celebrate. So Fagundez l. 5. de contract. cap. 21.

D. BONAVENT. in speculo animae, cap. 2. says that to sell something spiritually annexed is simony. But it is lawful to receive, or give, for labor and sustenance according to good customs.

The spiritual ANNEX making it simoniacal the holy Doctor seems to understand as that which is itself also spiritual, as appears in 4. dist. 25. dub. 5. litt. or something intrinsically joined, as the sacrament of order joined to it, which is the very consecration intrinsically joined to the spiritual, or when a prebend is sold, or if the spiritual annexed to the spiritual is sold; as preaching. So p. 1. Censit. sect. 30.

WHEREFORE he does not seem to understand labor in the way those cited above understand it, such that to sell the labor I expend per se in singing Mass, or preaching, would be simony; but I judge that labor is unsellable which is spent on devotion, attention, or intention; but the labor which I expend per se, not only in undertaking a long journey, but in standing in the church, singing, and crying out, I judge to be priceable; and in this sense (as I believe) D. Thom. spoke in 4. dist. 25. quaest. 4. art. 2. Durand. there, quaest. 3. Sylvester v. Simonia, quaest. 9. Malder. de simonia, tract. 9. cap. 3. dub. 6. Filliuc. cap. 1. quaest. 11. Reginald. l. 23. disp. 228. Sotus l. 9. quaest. 6. art. 1. Less. T. 1. l. 2. cap. 35. dub. 8. Suarez T. 1. de Relig. l. 4. de simonia, cap. 21. num. 10.

Others, however, assert it more clearly, whom Malderus cites loc. cit. and Bonacina de simonia, quaest. 6. p. 5. saying that the labor per se enjoined on a spiritual work can licitly be priced, and for the greater labor a greater price demanded, for instance, if the priest is fatter, or the preacher feeble. Nay, Valentia says something more, disp. 6 quaest. 16. p. 1. citing Gabriel, Caietan, Soto, and others; and Tanner. 2. 2. dist. 5. quaest. 8. dub. 3. num. 76. and Suarez loc. cit. num. 17. with whom Diana adheres, p. 1. tract. 16. resol. 29. Bassaeus v. Emptio, num. 5. warning that the price of a thing cannot be increased on account of the spiritual annexed, for instance of a chalice, etc. or of a field on account of the right of patronage, though he does not wholly refuse the opposite.

But if payment may be received only for the extrinsic, per accidens occurring labor, as Fagundez says n. 3., such as a long journey to Mass, or fasting for many hours; alas, how many simoniacs shall we stuff into that class? D. Bonav. teaches, ad cap 2. Ioan. that Christ cast out those selling oxen, that is, those who sell the labor of preaching for a temporal price.

AS FOR secular offices: whether they can be sold, many indeed deny; because such offices are the object of distributive justice, and are to be conferred on the worthier. So Medina C. de restit. quaest. 4. de usuris, Adrian. in 4. quaest. de usura Torrianus 2. 2. T. 2. disp. 23. dub. 2. num. 5. and to this end the sole law contributes, Cod. ad Legem Iuliam de ambitu, which forbids anyone to be promoted to public office for a price and by ambition.

Castaneus smiles upon this, p. 1. Catal. gloriae mundi, consider. 60. elsewhere fol. 38. The Gloss on the C. sicut 1. quaest. 6. Bouët. decis. 149. Caietan. in offi.. Avendan. resp. 9. col. 2. Fagundez l. 5. cap. 13.

Others, however, allege that Princes can sell those offices, provided they dispense them moderately, and to worthy men, and for the utility of the Republic, so that some great sum may be raised which would otherwise not be had. So teach Less. l. 1. cap. 32. dub. 4. num. 29. Aragon. 2. 2. quaest. 63. art. 2. Villalobos T. 1. tract. 8. difficult. 7. Ioan. de Cruz in directorio, p. 2. punct. 7. quaest. 7. art. 2. dub. 10. con. l. 3. Ledefma in summa, T. 2. tract. 7. cap. 1. concl. 15. Salon. 2. 2. T. 1. quaest. 63. art. 2. controu. 8. Ibidem Sylvius, Tanner. disp. 5. quaest. 7. p. 2. §. 5. ad 3. Malderus 2. 2. tract. 9. cap. 1. Bassaeus num. 8. dub. 5. Rebell. l. 9. quaest. 18. sect. 2. num. 24. and others in Diana tract. 5. Miscell. resol. 108. he adds Azorius T. 3. l. 8. cap. 7. quaest. 3. Filliuc. t. 1. tract. 24. p. 2. cap. 2. Corduba summa quaest. 117. Fagundez adds l. 5. cap. 23. Valentiam disp. 5. quaest. 7. p. 2. §. 5. ad 3.

D. Thom. also grants it licit in his reply to the Duchess of Brabant, opusculo 21. Sylvester, v. dignitas, num. 4. Baldus l. Barbarius, lectura 1. num. 6. ff. de offic. Praetoris, Vallascus in praxi de partitionibus, cap. 13. num. 67.

D. Thom. APPENDS, however, certain inconveniences, on account of which he does not readily adopt this.

AS FOR S. Bonav., I judge him to be for the second opinion; for in speculo animae, cap. 2., toward the end, §. Item, ut dictum est, to prove simony illicit, he argues, because we are not lords of spiritual things; but concerning temporal dignities he does not say in that entire division of sins that their sale is illicit; nay, he seems to infer that it is licit from the opposite reason adduced, and because there, where he sets forth all the species of sins as in a mirror to the soul itself, he deliberately omits this sale.

FURTHER, he seems to be of this opinion also in 3. dist. 40. dub. 2. litt. at the words: Non concupisces domum proximi tui, where he puts forward this argument: What Peter may acquire, he may desire: and answers that it is licit to desire moderately what is licit to buy, and at once adds concerning honors and dignities, insofar as they are useful temporally, whose pursuit belongs to avarice, he says, they may be moderately desired; and he infers that they may also be bought.

THE BEST reason is that included in D. Bonav., while he supposes these things buyable by public and ancient custom. For thus Princes and Kings sell offices, having even jurisdictions annexed, and indeed usefully, not only for the treasury, but also for the peoples: these, fearing to lose those dignities which they had bought at such a price, are held the more to their duty. It is confirmed because, as S. Bonav. tacitly indicates in that Opuscle in which he sets forth all sins to a nicety, and adduces the laws, he professes to find no law against this. I do not indeed judge that all Princes are destitute of counsel, or of counselors; but I hold as most certain that they act on these matters most prudently with the counsels of wise Theologians, especially because even the most holy Princes exercised these things in practice with the same upright men. Nor do these things harm distributive justice, for they can be sold to the better men.

By the counsel indeed of Justinian's wife a law was made that henceforth the offices of the judiciary should not be sold in amb. So that judges be made without any suffrages, as Cassanaeus, cited above, relates. And S. Louis, King of France, ordained the same, as Gaguinus relates, l. 6. cap. 2. And Pius V. by his motu proprio Etsi Romani, and Sixtus V. Cum pro suprema, forbid the procurement and assertion of any dignities having that right for a middling price, under penalties of confiscation of goods, etc. See Diana p. 3. tract. 5. resol. 108. Miscellan.

I CONFESS the matter is ill done, since what should be done by virtue is treated with money, as Cicero says, whom Baldus cites in the Leg. Barbarius.

I say, these things were said with the best zeal, lest justice be sold, Leg. Quisquis, C. si certum patet; they enacted this cautiously as regards the power of judging, on account of the great peril of avarice; for those who buy praetorian offices so dearly wish to stuff the crimes of their subjects into them, as I have often seen in the praetorships of rhetors, where all offices are for sale. Yet if this is done cautiously and prudently, the dangers will be removed.

A QUESTION, namely, concerning those who hold such offices with the power of transferring them to another, for instance to a kinsman or friend; whether they can also sell it.

THE Doctors COMMONLY affirm it. So Corduba, quaest. 117. Ioan. de la Cruz in doct. p. 1. praecept. 7. quaest. 7. art. 2. dub. 10 and others with Diana Tract. 5. Miscell. resol. 109. and Fagundez de contract. l. 5. cap. 23. num. 21. The reason is, because that liberty tacitly includes also the power of selling, since the manner of transferring is not limited. Bassaeus num. 8. accedes to these.

Many ADD, with Diana, that he can reserve to himself some pension in transferring such an office; but Fagundez, struck with fear, does not smile upon this.

Things are SELLABLE even in hope, as the offspring of handmaids, of cattle, the cast of fisheries, hunts, and fowling: for these can be given in pledge, L. et quae nondum sunt, ff. de pignoribus: therefore also sold. Yet among these some are sold conditionally, as the fruits of a field, the offspring of a handmaid, namely if they be born; others absolutely, as the cast of a fishery, etc. So Molina T. 2. disp. 340. Gomez t. 2. variar. cap. 2. Fagundez cap. 24. Libri 5. man. 6.

Poisons are also SELLABLE, which can serve for colors or other uses of pure mixture, but not the rest. See Molina disp. 340.

All goods present and future are also SELLABLE. So Molina loc. cit. Fagundez lib. 5. cap. 25.

AS FOR things belonging to another, I suppose, with D. Bonav. in speculo animae, cap. 2. and in 4. dist. 15. p. 1. art. 2. quaest. 1. that one can be a possessor of another's thing, which he sells, in two ways. First in good faith; second in bad faith. The possessor in good faith is he who thinks the thing to be his; in bad faith, he who knows it to be another's. See Panormitanum in the cap. gravis, de resti. spoliatorum, and it appears from the cap. si virgo, 24. quaest. 1. in se. unam parte decreti. I have said enough of these, when treating of restitution and the rest.

It is CERTAIN, therefore, that a possessor in bad faith cannot sell. The reason of D. Bonaventure, which all use, is, because by a sale dominion ought to be transferred from the seller to another: but such a possessor has no dominion of the thing; nay, he is in continuous delay of the obligation of restitution, even of the fruits.

A possessor in good faith CAN also sell the thing, as long as he prudently thinks it his own: but as soon as he has recognized the thing to be another's, he is bound to restore it to its lord, as I said concerning restitution.

It SOMETIMES happens that, by reason of place or time, a sale is illicit; as to bring things for sale to a church or a sacred place, that they may be sold there, is a mortal sin. So D. Thom. prima Corinth. 2. on the words: Numquid domos non habetis ad manducandum, et bibendum? And he alleges the deed of Christ cap. 2. Ioan. when he cast out all who were selling.

By the same argument it is proved by D. Bonavent. ad cap. 2. Ioan. and he confirms it by the authority of D. Chrysostom homil. 22. in Matt. and l. 2. de civitate, cap. 20. from which the holy Doctor deduces that it was a grave fault, that is, a grave irreverence. The same teach Molina t. 1. de iustitia, disp. 44. Sylvest. v. immunitas, Panorm in cap. cum Ecclesia, de immunit. and the Council of Trent smiles upon it, Sess. 22. in the decree on what is to be observed and avoided in the celebration of Mass.

FURTHERMORE, in perjuries, lies, and other vices which arise not from the sale itself, but from the wickedness of the sellers and buyers, the sale is rendered entangling and sinful, as all confess with D. Bonav. in speculo animae, cap. 2. Nay, if a lie and perjury are committed to deceive the buyer, that he may buy beyond and above the just price, it is mortal against justice, and the seller is bound to restitution under mortal sin, if the buyer for that reason buys beyond the rigorous price, and if the excess is grave; but it will be venial if he slightly exceeds the just price, as D. Bonav. teaches loc. cit. Molina T. 2. disp. 346. Fagundez l. 5. cap. 27.

There are, however, certain things having no determined price, as exotic things from the new world, about which it is asked: whether their lords can sell them for whatever they wish.

It seems to me MORE PROBABLE that some price is to be held, to be set by the judgment of a prudent man, reckoning what must be reckoned. So Navar. sum. l. 23. num. 78. Less. l. 2. cap. 21. dub. 3. Caiet. 2. 2. quaest. 77. art. 1. Caspens. Tract. 19. disp. 4. sect. 2. and others commonly, in Fagundez l. 5. de contract. cap. 28. Although some, in him and in Diana p. 1. Tract. 8. resol. 36. hold the opposite; whom Bassaeus also cites num. 8. thinking with us.

THE REASON is, because things for sale are not to be determined by the seller alone; otherwise most grave inconveniences would arise; nor are these of better condition than other things; nay, since they are not necessary, they ought not to plunder the peoples.

Things also NECESSARY for life ought to be sold in great necessities, and men can be compelled for the public good; and to hide such things is a most grave sin, if otherwise their price rises, or the poor suffer gravely. So D. Bonavent. in speculo animae, cap. 2. at the end. He proves it from that Lucae 12. of the man who had indeed gathered many goods, to whom the sentence of death and damnation was pronounced: Stulte, hac nocte animam tuam repetent a te. He proves the same ad 12. Lucae. And this also concerning cloth and other necessaries teach Barthol. l. 1. C. de Episcopali audient. Tabiena v. emptio, num. 6. Couar. l. 3. var. cap. 14. binding others Panormit. and alii in cap. 1. de empt. et vendit. and l. 2. ff. de nundinis, and l. 1. Cod. ne nemini liceat in empt. Matth. de Afflictis quaest. 3. in prooem. constit. Neapol. Felinus in cap. 1. de Iudaeis. Therefore a Judge, in time of charity or famine, can fix the price and impose penalties on victuals, as Molina T. 2. de Iustitia, disp. 341. Syluest. v. emptio, quaest. 4. Couar. l. 3. var. cap. 14. Gomez t. 2. var. cap. 2. teach, and it is clear from l. 1. §. cura carnis, ff. de offici. Praetoris urbis.

FINALLY I add, that it is licit to buy things so that the same, when altered, may be sold dearer, for the sake of gain, and this toward the good end of supporting a family, etc. So D. Bonau. loco citato whom Molina T. 2. disp. 239. Less. l. 2. cap. 21. dub. 1. D. Thom. 2. 2. quaest. 77. art. 4. Sotus de Iustitia, l. 6. quaest. 2. art. 1. Benuenutus tract. de mercatura, cap. 1. num. 28. Cuniaph. 1. decret. ord. C. Fornicari disp. 88. follow, where it is proved also from D. Augustino.

Nor does D. Chrysost. cited in that C. stand in the way, where he says, a merchant cannot please God. For he speaks of those who place their ultimate end in trade, being ready to offend God mortally.