78. On Gaming, on Suretyship, on Transaction

1. Philippus plays cards with Iosephus, most skilled in the game, although he himself knows his own lack of skill, nor is Iosephus ignorant of it. Nevertheless he plays daily, and daily loses now four, five lire; now nine, ten lire.

2. Ioannes, playing cards with Iacobus, lost fifty lire, which he paid, ignorant of the civil laws, which concede no action.

Hence he thinks of reclaiming from Iacobus what he paid, and secretly compensating himself, if Iacobus refuses to return what was paid.

Q. What as to the case?

R. 1. Neither is Philippus held to pay the money promised in the game, nor can Iosephus receive it. The reason is that, since in the case one is subject to no danger of damage because of his skill, and because of the other's lack of skill, there is lacking, as it were, the thing which is bought by a price in a game, namely the uncertain hope of profit with the danger of damage on both sides. Nor is it valid to say that Philippus prudently and knowingly plays, knowing his own lack of skill, because the thing is still lacking, just as even if someone knowingly buys glass, but buys it as a precious gem, the thing is lacking, and there is no sale. But if Iosephus had sufficiently forewarned Philippus, and nevertheless he obstinately wished to play, restitution would not have to be urged in practice, because there would be absolutely no deceit on the part of Iosephus, but Philippus, forewarned and still playing, is judged spontaneously to renounce his right. I. M. 1247, 1350; G. 1028.

2. Ioannes cannot reclaim from Iacobus what was paid, nor consequently can he compensate himself in any way. The reason is that, although from games no action is given by the laws, nevertheless no reclaiming of what was paid is conceded. - And hence it is plain that one is held per se to pay what he lost in a game. For the contract is void neither by natural law nor by the positive law itself. - But what if Ioannes is a son under paternal power? In such a case reclaiming is conceded to him. I. M. 1247, 1249, 1251; G. 1021, 1024.

3. Fidelis made suretyship for Felix. Unhappy Felix is compelled to make a cession of goods. Before this happened, Fidelis admonishes the creditor of Felix to constitute a mortgage over his goods, and thus render his credit secure. But when the creditor neglected to do this, and Felix has now ceded all his goods, he now demands payment from Fidelis. Is Fidelis held to pay?

R. Negatively. For, since the creditor was admonished at an opportune time concerning the unstable state of Felix, he could obtain his credit through a mortgage. Since by his own fault he neglected to do this, he himself is the cause of his own damage. Besides, the surety is not held to paying except subsidiarily, in default of the principal debtor; namely, if he does not pay, after first being pursued by the creditor, when the debt is already mature, C. I. 1907; C. G. 2021; and when the debt is not yet mature, if by the act of the creditor himself there can no longer be place for subrogation into the mortgages and privileges in favor of the surety himself. C. I. 1928; C. G. 2037.

4. Azor and Paulinus were disputing about the ownership of a certain house, and the lawsuit was being conducted in the tribunals for several years with great expenses for each. Finally, by mutual consent, they determine to cease from the lawsuit, and that Azor keep for himself the upper part of the house, Paulinus the lower. This private transaction having been made, Azor, looking through the old writings of his family, finds an authentic contract of sale of the house, by which it was established that the father of Azor had bought the house from the father of Paulinus, and that the whole price had been paid to him.

Q. Can Paulinus keep the part of the house?

R. Negatively. For from C. I. 1777, a transaction is null when it regards only one object, and a new document found proves that one or the other party has no right over the same object. From C. G. 2057, a transaction of this sort is also null. For truly it is not reasonably presumed that the parties wish to consent to a transaction even in the case in which there is present a certain and evident document and right proving one of the parties. The transaction then would not truly be founded upon a doubtful matter, but upon ignorance, or upon error concerning a thing altogether certain. I. M. 1283; G. 962.