XII. On Sale and Purchase

What is the nature of sale and purchase? - Purchase is an agreement of price for merchandise; but sale is an agreement of merchandise for price. Purchase and sale, therefore, are two correlatives, and in reality a single contract, constituted by the consent of each contracting party, namely of giving merchandise for a determined price and the price for determined merchandise. Agreement, and accordingly the obligation of giving merchandise for price, and the obligation of giving price for merchandise. Under the name of merchandise are understood all things, both immovable and movable, which are commonly sold among men. But under the name of price is understood how much a thing is worth in coin or money; for when for one saleable thing another saleable thing is given, it is not purchase and sale, but rather exchange. Money therefore is as it were the instrument, measure, and price, instituted by public authority, of all things which come into exchange. But when money is given for money, exchange is had. Of price for merchandise; therefore what is given to a creditor in payment of a debt is not purchase and sale, but giving in payment. But as sale is not understood without merchandise, so purchase is not without price. The merchandise must be certain, and the price likewise must be certain; if the merchandise is uncertain, e.g., I sell you one horse out of a hundred; if the price is uncertain, e.g., I buy for as much as it will be appraised, sale and purchase are not yet understood. - Inst. 1. 9. t. 24. § 1; L. Pacta conventa Dig. de Contrahenda emptione, etc.; C. I. 1447, 1454; C. G. 1582, 1591, 1592; C. B. 433; C. H. 1445, 1446; C. L. 1544; L. 793; St. Thomas 2. 2. q. 77. a. 1. Cf. in this whole contract Troplong della Vendita.

To whom do ownership of the thing, danger, and advantage pertain according to Roman Law? This contract is perfected before delivery of the thing or of the price. Inst. 1. 9. t. 24 init.; L. Sicut Dig. de Rer. permutat. § 2. Nevertheless for it there is required determination of the price; if this is remitted to the buyer himself, the contract is null. L. Quod saepe ff. de contrahenda emptione. Otherwise, if it is remitted to a third party. L. ult. C. e.t. And just as the price, so also the thing must be determined, at least in hope. L. 794. Although this contract is perfected by consent alone, so that no writing is per se required, nevertheless it can be agreed that it not be valid unless a writing has been made. Inst. 1. 3. tt. 23, 24; L. 795.

To the seller and buyer is brought forth a right to the thing, but not a right in the thing, unless delivery has been made, by which ownership is transferred. Inst. l.c. § 3. Indeed although the thing has already been handed over to the buyer, it still remains under the ownership of the seller until either the price has been paid, or satisfaction has been made to the seller in another way, e.g., by pledge, or the seller has trusted the buyer concerning the price. Inst. 1. 2. tit. 1. § 41; L. 795, 796.

It is special in this contract that, although the contract is perfected, before delivery of the thing the seller is still owner of the thing, and nevertheless the danger of the thing, like its advantage and fruits, pertains to the buyer, unless, as regards danger, it perishes by fault of the seller, and unless the sold thing is determined only as to genus, such as so many modii of wheat, or even if it is determined in species, is nevertheless a thing which is still to be measured, or counted, or tasted beforehand; since then the sale is not yet judged perfected. Inst. 1. 3. t. 24. § 3; L. Quod si neque, L. Illud Dig. de Periculo et commodo rei venditae; L. Quod saepe Dig. de Contrahenda emptione; Laymann de Emptione et Vendit. n. 18; L. 797, 798, 838. The buyer transfers the price, or ownership of the money, to the seller; but the seller transfers empty possession of the thing to the buyer.

If the seller was truly owner of the thing, ownership of the thing is transferred to the buyer. If on the contrary the seller was not owner of the thing, then he is bound to furnish eviction to the buyer. L. Ex empto § 2 Dig. de Actionibus empti et venditi; L. Servus § 1 ib. Namely, if the owner of the thing evinces that the thing is his, then the seller of this thing is bound to return the price to the buyer, and as much as it was of interest to him that the thing had not been evicted. L. Si quaestio C. de Evictionibus; L. Evicta re Dig. de Evictionibus, etc.

For this reason, even if another's thing or a stolen thing is sold to an ignorant buyer, the contract is valid, ownership of the price is transferred to the seller, and the buyer acquires the right to eviction, by which the seller is obligated to the buyer. L. Rem alienam, L. Si in emptione Dig. de Contrahenda emptione; L. Ex empto Dig. de Action. empti et venditi; L. 48 Qui vas Dig. de Furt. § ult. Certainly according to Roman Law purchase and sale are perfected by the obligation of paying the price on the part of the buyer and the obligation on the part of the seller of effecting that the buyer acquire ownership of the thing, which can well be done even if the thing is not the seller's, for he will be able to acquire it. But a thing bought with another's money belongs to the buyer if he buys in his own name. L. Si eo C. de Rei vindicatione. Exception: if the money belongs to the church, a minor, or a soldier; because then the thing is acquired for them. L. 799, 800; Lugo Resp. Mor. 1. 6. d. 14.

To whom do ownership of the thing, danger, and advantage pertain according to more recent Law? According to C. I. 1125, 1448, 1450-1452; C. G. 1138, 1583, 1585-1587; C. L. 1549, 1550, 1551, 1575, once an agreement has been made concerning the thing and the price, the contract is perfected, even if the thing has not yet been handed over, nor the price paid, and ownership of the thing, before delivery, is with the buyer. Therefore if the whole thing is bought in gross or by the body, commonly in bulk, for one price, ownership, danger, and advantage of the thing are immediately with the buyer. - But if it concerns things which are sold by weight, number, or measure, or which are usually tasted beforehand, the contract is not judged perfected before the thing has been defined according to weight, number, or measure, or tasted beforehand. The reason is that the thing must be determined. Hence according to the same C. I. 1470; C. G. 1614, from the day of sale all fruits of the thing pertain to the buyer; and C. I. 1480, 1125; C. G. 1624, 1138 say that the danger of a thing not yet delivered pertains to the buyer. "Just as the danger of the thing pertains to the buyer, so its fruits are owed to him, and civil laws opposed on this point have been reproved by Canon Law, as favorable to usurious profit, as the Salmanticenses say." L. H. A. tr. 10. n. 169. - L. 798.

According to C. I. 1454; C. G. 1591, 1592; C. H. 1447, 1449, the price must be determined by the contracting parties. It can be committed to the judgment of a third party. But if he cannot or will not define the price, the contract is null.

The sale of another's thing is null. C. I. 1459; C. G. 1599. This nullity cannot be opposed by the seller. C. I. ib. But the commercial sale of another's thing is valid. It obliges the seller to acquire it and to hand it over to the buyer under penalty of reparation of damage. C. I. Comm. 59. According to C. I. 1314, under penalty of nullity, agreements which transfer ownership of immovables, or of other goods, or of rights capable of mortgage, must be made by public instrument or private writing. Almost the same according to C. L. 1589 ff. According to C. G. 1341, 1583, any sale is perfected by consent alone of the parties without any legal formality. When the sale exceeds the sum of 150 francs, in order that it can be proved in the external forum, an authentic or private writing is required. According to C. H. 1445, 1450, 1452, 1453, 1468, sale is perfected by the agreement itself, before delivery of the thing, without any legal formality. But only a right to the thing is acquired. Loss of the thing is imputed to the seller if he is constituted in delay in handing it over, and if the sale of a fungible thing is made in a body, commonly in bulk, which happens when merchandise is sold for one and a certain price, without account being taken of weight, number, and measure; or if account is indeed taken of weight, number, and measure, but only for the effect of determining the price. But if fungible things are sold for a fixed price in relation to weight, number, and measure, loss is not imputed to the buyer if the thing has not first been weighed, counted, and measured, and unless he is constituted in delay. If things are sold which before they are bought are usually sampled, such as wine, oil, etc., or if they have been bought under this condition, the sale is presumed to have been made under a suspensive condition. The fruits of the sold thing pertain to the buyer from the day of the perfected contract.

According to C. A. 1053, 1054, 1056, 1063, 1064, 1066, 1080, 1081, 1083, 1084, by sale and purchase only a right to the thing is acquired; wherefore the seller preserves ownership of the thing before its delivery. The price must consist in counted money, and cannot be indeterminate or contrary to the laws. Nevertheless it can be remitted to the decision of a third person. Once the thing has been handed over, even with the price not yet paid, ownership of it passes to the buyer. The danger and advantage of the thing pertain to its possessor, as also in exchange, with which sale has common laws where special ones are wanting. In the purchase and sale of a thing for testing, the bought thing does not pass into ownership of the buyer unless the price has been paid; and during the testing of the thing, the buyer is as a borrower, and before the time of testing has elapsed he can withdraw from the purchase. In the purchase and sale of a thing under reservation, unless another buyer within a determined time offers a greater price, if the thing has not been handed over, the efficacy of the contract is delayed until verification of the condition. But if it has been handed over, the contract is perfected, but once the condition has been verified, it is resolved. According to C. B. 433, 446, by sale and purchase only a right to the thing is had; wherefore delivery of the sold thing transfers to the buyer the danger, deterioration, fruits, and burdens of the thing. As regards immovable things, these effects are produced from the inscription of the owner in the land register. Cf. arts. 494, 496.

What force do arrhae add to sale? What force does a promise of sale have? According to Roman Law: If arrhae are added only to a promise of sale, they do not confirm the contract, but each of the contracting parties can withdraw. But in this case, if he who handed over the arrhae to the other withdraws, he simply loses them; if he who received them withdraws, he must restore double, that is, the arrhae received, and in addition a value equal to them. - If they are added to the sale itself, they do not make it conditional, but are an argument of the contracted sale; for they are computed as part of the price, or are given as security of payment; whence neither of the contracting parties, against the will of the other, can withdraw.

In doubt whether they were added to the promise of the contract or to the contract itself, one must stand for the minimum, or they are judged to have been added only to the promise of sale. Inst. 1. 3. t. 24; L. 25 Dig. de Contrahenda emptione; L. Contractus C. de Fide instrumentorum.

According to C. G. 1589, 1590, a promise of selling is equivalent to sale whenever there is reciprocal consent of each party in the thing and the price. But if arrhae are joined to the promise, either contracting party can withdraw from the contract, so that they are lost by him who gave them; but he who received them returns them doubled. Hence it is clear that a promise of sale is not altogether to be confused, even according to C. G., with sale itself; since according to the same Code, by sale ownership of the thing is transferred, but by no means by promise of sale. Wherefore a promise of sale is equivalent to sale, not insofar as it transfers ownership, but insofar as the seller can be compelled, after receiving the price, or conversely the buyer, after receiving the thing, to fulfill it. Gousset 833. According to C. H. 1451, 1454, a promise of sale and purchase gives to the contracting parties the right of claiming fulfillment of the contract. If in the contract of sale and purchase arrhae have been given and accepted, the contract can be rescinded if the buyer is content to lose them, or the seller to restore them doubled. Cf. C. L. 1548. As regards C. I., cf. 993.

Certainly, speaking per se, it is one thing to promise a thing, another to give it. C. B. 336 ff.; Lugo d. 26. n. 10; L. 794.

Whether the purchase of a thing previously sold to another is valid? According to Roman Law:

A thing sold to one person, and not yet handed over to him, is in the ownership of the seller, who therefore can validly sell and hand it over to another. For when delivery has followed, it becomes the second buyer's. The same must be said if, although the thing has been handed over to the buyer, nevertheless the price has not yet been paid by him, or is not yet regarded as paid. For then ownership of the thing has not yet been acquired for the buyer. But although the second purchase is valid, delivery having followed, nevertheless it is not licit. Hence if a thing has been sold to two persons and not yet handed over, it must be handed over to the first buyer. But if it has already been handed over to the second buyer, who has already paid the price, he acquires ownership of the thing, but the first buyer has a right and personal action against the seller as regards interest and damages. L. Qui tibi C. de Heredit. vel actione vendita; L. Si ancillam C. de Action. empti et vend. But if the thing has already been handed over to the second buyer, but the price has not yet been paid, or regarded as paid, the thing must be handed over to the first buyer, since it is still in the ownership of the seller. Although the thing has been handed over to the later buyer, and he has paid the price, if the second buyer was conscious of the prior sale, he can be condemned, at least by natural law, to hand over the thing to the first buyer. But, since the contract is valid, he is not bound to restore it before the sentence of the judge, but is bound only to reparation of the damage; if nevertheless the thing has been mortgaged to the first buyer in security of the contract, since he already has some right in the thing, the thing must be restored to him. L. Si creditor § ult. Dig. de Distract. pignorum. Likewise, if the later buyer has received the thing by lucrative title, e.g., by donation, the first buyer will be able to evince the thing from him. L. Ignoti C. de Revocandis his, quae in fraudem creditorum alienata sunt. And this has place even if the second was ignorant of the fraud. If the first buyer is the Church, or a pious place, or a City, although the thing has then been handed over to another and the price has been paid by him, the thing must be restored to the first buyer; because the Church, or pious place, or City, even without delivery, has already acquired ownership. L. 827; Lugo d. 20, n. 112, 116; Molina d. 369. n. 9; Lessius 1. 2. c. 21. n. 142.

According to C. G. 1138, 1583, 1599, after perfected consent of each party, the sold thing passes into the ownership of the buyer before delivery itself. But the sale of another's thing is null. No one can transfer to another more right than he himself would have. L. 54 Dig. de Reg. Iur. Nevertheless, it gives place to reparation of damage; and if afterward the thing has become the seller's, he is then obligated to fulfill the sale. Hence it follows that the right is always with the first buyer to evince the thing from the second. Nevertheless according to the same C. G. 1141, if the thing which someone has obligated himself to give or hand over to two successive persons is movable, that person who possesses is preferred and obtains ownership, even if his title is later in time, provided nevertheless that he possesses in good faith. The same is held according to C. I. 1448, 1459, 1126, whether it is a movable thing or a title to bearer. Cf. here 1128. According to C. H. 1473, whether the thing is movable or immovable, the first possessor in good faith is preferred. By natural law the first buyer always retains the right to reparation of damage, if he truly suffered it from the second sale. Cf. C. L. 1578 ff.

What are the obligations of the seller and buyer? 1. The seller is bound to hand over at once the thing and its accessories, free from another's possession and from other unusual burdens, not defective, and entire, unless something else has been agreed; and he is bound to furnish eviction for the thing handed over. C. I. 1462, 1471; C. G. 1603, 1625, 1615; C. L. 1568, 1583. The buyer also, unless something else has been established by pact, must hand over the price at once. Likewise, unless something else has been established by agreement, both the thing and the price must be handed over in the place where the contract is made, and in that mode concerning which agreement was made in the contract. The expenses of delivery are owed by the seller. C. I. 1467, 1468, 1482, 1507, 1508; C. G. 1608, 1609, 1626, 1650, 1651; C. H. 1461, 1465, 1474, 1500; C. L. 1546, 1570, 1572. - The contract of sale and purchase is in equality. For purchase and sale was introduced for the common utility of each contracting party, while one needs the thing of the other and conversely; and accordingly it ought not to be more burdensome to one than to the other. If equality between price and merchandise is not preserved, injustice is committed, and in the forum of conscience there is an obligation of restitution, or reparation of damage, grave or light according to the measure of the damage itself. St. Thomas 2. 2. q. 77. a. 1; C. H. 1466-1468; C. Si venditori 7 de Empt. et vendit.; Rogron on a. 1604. When the price has not yet been paid, the seller is not bound to hand over the thing. C. I. 1469; C. G. 1612; C. L. 1574. If the buyer fears trouble in possession of the thing, he can meanwhile suspend payment of the price. C. I. 1510.

2. Moreover the buyer is bound to pay interest for the unpaid price from the day on which he possesses the thing, if the thing is fruitful, although accidentally it has given no fruits from the time of the sale, unless the seller has given delay for paying; because it is not equitable that the buyer have both the thing and the price at the same time. But if the thing is not fruitful, he is not bound to pay interest unless he was in culpable delay, nor unless it was otherwise agreed. C. I. 1509; C. G. 1652; C. H. 1051; C. L. 1573. 3. In addition, the buyer is bound to pay expenses made for carrying away the sold thing, for writings or authentic acts, likewise for expenses necessary for preservation of the thing from the day of sale, unless it has been agreed in another way. C. I. 1455, 1467; C. G. 1593; C. L. 1552. Cf. C. H. 1455, 1465; C. B. 433 ff., 459 ff.

When is sale resolved by reason of the price? - Concerning Roman Law: In the external forum, so that lawsuits not be multiplied too much, an action against the author of damage is not conceded unless one buying more dearly or selling more cheaply has been deceived beyond half of the price. L. 2 de Rescindenda venditione. And this is also valid by Canon Law. L. 805. From the more recent Laws: If a commissory agreement has been expressly made, so that, when the price has not been paid at its time, or the thing not handed over or accepted, or any other attached condition not fulfilled, the thing would become unbought, the sale is resolved by the law itself, or rather the thing is vindicated for its owner. Resolution of sale is the rescission of a valid sale. Vindication, however, is an action into one's own thing, by taking it to oneself. But if such an express pact has not been made, but only a tacit one has been present, it is resolved only by the office of the judge. C. I. 1511, 1165; C. G. 1654; C. H. 1124, 1503. Cf. C. L. 1585. - Commissory: the lex commissoria is an exception added to a contract; if either of the contracting parties acts against it, he incurs the fine concerning which agreement was made. Cf. the whole title de Lege commissoria in the Digest. Nevertheless, the sale of movable things is resolved by the law itself if the buyer does not come on the defined day of delivery; or if the buyer delays in paying; for then it is in the power of the seller, if the thing has not yet been handed over, immediately to withdraw from the purchase, unless delay has been conceded. C. I. 1512; C. H. 1505; C. G. 1657.

But if the thing has already been handed over, the seller will be able to claim or vindicate the thing, unless again delay for paying has been conceded to the buyer. C. I. 1512, 1513; C. G. 1657. But he will be able to vindicate within fifteen days to be computed from delivery, provided the thing is with the buyer, and has neither been changed, nor obligated to an ignorant lessor. C. I. 1512, 1523. Cf. C. A. 1062. - And in the sale of immovables, by full right, the contract is not resolved unless first, after the time for payment of the price has elapsed, an intimation of payment has been made by the seller to the buyer, who is then constituted in delay. C. G. 1656; C. H. 1504. The seller injured beyond half of the just price, according to C. I. and C. A., beyond seven twelfths parts according to C. G., in the sale of an immovable thing, has the right of demanding rescission of the contract, even if he expressly renounced this right in the contract and declared that he donated the excess. C. I. 1529; C. G. 1674. It is otherwise, however, according to C. A. 935. Rescission of sale by reason of lesion belongs to the seller alone, and only in the sale of an immovable thing, in the external forum; but it is in the power of the buyer either to withdraw from the sale or to supply how much more the thing is worth. This rescission ends in two years. C. I. 1529, 1531, 1534, 1536; C. G. 1674, 1676, 1681, 1683. Cf. C. A. 934, 935, 1060. In the forum of conscience, the action of rescission by reason of lesion belongs per se both to the seller and to the buyer, whether it concerns an immovable thing or a movable, whether the thing was bought beyond the highest price or below the lowest. According to C. A. 1060, the action by reason of lesion likewise belongs to each, namely both to seller and buyer. - Once sale has been resolved, together with the thing, its fruits are consequently also to be restored. - C. B. 454, 455; L. 805, 819; L. 2 de Rescind. vendit. C.; C. 3, 6 de Empt. et vendit.; St. Thomas 2. 2. q. 77. a. 1 ad 1; Gousset 839; Troplong on a. 1654. The action of rescission of the sale of immovables because of lesion is prescribed after two years have been completed from the day of sale. And this term runs even against wives, absentees, interdicted persons, minors, representing persons constituted in greater age who sold. And this term also runs likewise and is not suspended as long as the time agreed by the pact of withdrawal runs. C. G. 1676; C. I. 1531. When rescission has been admitted, if the buyer prefers to retain the thing, besides the supplement of the price he must also pay interest of this supplement from the day of the petition of rescission. If he restores the thing and receives the price, he also returns the fruits from the day of petition. But interest on the price is owed to him from the day of petition or from the day of payment, if he did not gather fruits. C. G. 1681, 1682; C. I. 1534, 1535.

When is purchase resolved by reason of the thing? - If a defective thing has been handed over, the buyer can proceed, within the time established by the laws, by redhibitory or estimatory action. To redhibit is to cause the seller to have again what he had had. To estimate is to cause the excess of the price to be restored according to the estimation of the thing, by how much less it ought to have been sold. C. I. 1478, 1501, 1505; C. G. 1644, 1648; C. H. 1486, 1491, 1492; C. L. 1582; C. A. 933; C. B. 462 ff.; L. 819; Rogron on a. 1625. If the thing has not been handed over whole, because a part of it perished, the buyer can either withdraw from the contract or diminish the price proportionately. C. I. 1461; C. G. 1601; C. H. 1460; C. L. 1576, 1577.

But if after delivery the buyer has suffered eviction of a part, it is lawful for him to withdraw from the purchase if that part is of such kind or so great that, had he known, he would not have bought it. C. I. 1492; C. G. 1636; C. H. 1479; C. B. 468 ff. If the purchase is not rescinded, the value of the evicted part is compensated to the buyer according to its estimation at the time of eviction. C. I. 1423; C. G. 1637. Cf. Troplong on this article. If an error has intervened in the measure of an immovable thing, the quantity having been brought into the contract, it is indeed not lawful for the seller to withdraw from the sale; but it is lawful for the buyer if an excess greater than a twentieth part is found, but not if lesser.

If one does not withdraw from the sale, and there is excess or defect as to quantity, the price will have to be increased or diminished according to the measure of the quantity. But an action of this kind ends in a year. C. I. 1473-1479; C. G. 1617-1623; cf. C. H. 1469-1472. According to C. A. 1059, 1060, when it concerns merchandise for which a rate has been established, the buyer can juridically seek compensation for any very small lesion. Outside this case, purchase and sale can be impugned both by the buyer and by the seller only under the title of lesion beyond half.

Whether the seller is bound to manifest defects of the thing? Defects are substantial, or only accidental; hidden, or manifest; moreover either the seller is questioned about them, or not. Hence: In every case the seller is bound to manifest all substantial defects of the thing, both in itself and relatively to the known end of the buyer, or all those things which make the thing another thing, or render it harmful or notably useless; otherwise he is liable for the price and for the damage. Thus according to every Law. A seller who is questioned is bound to manifest all hidden defects, even if they do not render the thing harmful or useless; otherwise he would commit fraud. Consequently, if fraud was the true cause of the purchase, the contract is rescindable. But if the fraud was only incidental, so that the buyer, knowing the defect, would still have bought, but not at so much, the seller must restore only as much as the buyer would have bought it for less; because otherwise almost no sale could be made. But if the seller is not questioned, and the hidden defect does not render the thing useless, he must diminish the price by reason of the defect. The reason is that otherwise the thing would be sold for more than it is worth. The seller is not bound per se to show accidental defects of the thing which are of themselves manifest, provided he diminishes the price in proportion to the defect. The reason is that then no injury is done to the buyer, neither by reason of the price, which is diminished, nor by reason of the defect, which, if the buyer has not seen it, he must impute to himself. Exception, however, unless the buyer is very rude, because with respect to him the defect is judged hidden. Exception also if the seller is specially questioned about such a defect. If the seller protests that he does not wish to give an account of any defect, even the most hidden, he is bound to nothing, provided the thing is not sold beyond the just price, at least the highest, with account taken of that hidden defect. L. 818, 819, 823, 824; St. Thomas 2. 2. q. 77. aa. 2, 3; Quodl. 2. a. 10; C. I. 1481, 1494, 1498 ff.; C. H. 1484 ff.; C. G. 1623, 1638, 1641 ff.; C. B. 439, 442, 459-461, 463, 464, 475, etc.; C. A. 869, 871, 872.

Whether the seller is liable for all damages following from a defect of the sold thing? - He is liable only for foreseen damages; because he could not undertake an obligation as to those things which he did not foresee even in confused fashion.

To what is the seller bound if the thing perishes before or after delivery? He is bound to nothing if the thing perishes before delivery from a fortuitous event. The reason is, according to C. I. 1480, 1226, 1298, 1299, 1504; C. G. 1624, 1138, 1183, 1302, 1647; C. L. 1549, that a thing perishes for its owner, that is, the buyer. So also, unless it has been agreed otherwise, this must be held according to C. H. 1182, 1445, and according to Roman Law, although the seller preserves ownership of the thing until it has been handed over. L. 828. - If the thing perishes before delivery from fault of the seller, he is liable for the price and expenses of the contract, and also for what was of interest to the buyer, because he ought to have guarded the thing as his own, and he is liable for the damage inflicted.

C. I. 1140, 1219, 1224, 1504; C. G. 1137, 1138, 1182, 1302, 1647. - If the thing perishes after delivery from an intrinsic defect which existed at the time of delivery, he is likewise bound to restore to the buyer the accepted price, and to pay the expenses of the contract, if there are any, and likewise to compensate that which was of interest to the buyer. The reason is that he sold a useless thing, or a thing of no value; therefore there was in the buyer an error concerning the substance of the contract; therefore the contract is null by defect of consent and of the matter itself, which was estimable by no price. Moreover he himself was the cause of the buyer's loss. C. I. 1504; C. G. 1647. Cf. C. H. 1460, 1094 ff., 1487, 1488, 1497; C. A. 1061.

When is the seller liable for eviction of the thing? He who handed over a thing to another from an onerous cause, or the author, if that person is deprived of that thing, must furnish eviction to him; for to evince is to take away something by overcoming. Hence the seller is liable for eviction whenever the buyer is juridically disturbed from possession of the bought thing. Exception, unless it was otherwise agreed in the contract. The reason is that the seller then cannot transfer ownership of the thing. - He is also bound to refund the price to the buyer when it is discovered that the sold thing certainly pertains to a third party, here and now claiming it. The reason is the same; for the seller could not transfer ownership of a thing which he himself did not have. But he is not bound to this in conscience before the sentence of the judge, unless it is altogether certain to him that the thing truly belongs to that third party; nor is he bound easily to give faith to others asserting that it is so, since presumption favors him and no sentence of the judge has otherwise intervened. - But when place is made for eviction, the author is bound to defend the defendant at his own expense, and, when the thing has been evicted, to furnish him indemnity. Wherefore he must restore to him what he received from him for the thing, refund to him the expenses of litigation made, and that which is of interest. For eviction must be furnished from a certain tacit contract between giver and receiver. And thus, if the value of the evicted thing has increased, its increased price is owed. C. I.

1481 ff.; C. G. 1626 ff.; C. A. 928 ff.; C. A. 1474 ff.; C. L. 1581; Troplong della Vendita c. 4 on arts. 1626, 1633. In a redhibitory action the buyer is liable for deteriorations; in eviction he is not liable for deteriorations even occurring by his fault after the sale. In a redhibitory action the buyer must restore fruits; in eviction he is not bound to give an account of consumed fruits. In a redhibitory action the buyer is bound to restore improvements and accessions; in eviction the buyer retains for himself everything which increases the thing. Troplong della Vendita cap. 4, a. 1647, num. 572.

Who can sell and buy? All can sell and buy who generally can contract and are not specially prohibited in the Law. C. I. 1456; C. G. 1594; C. H. 1457; C. L. 1559, 1560, 1567. By Canon Law, rectors of churches, beneficiaries, regular men, and all religious women can sell ecclesiastical goods, immovable and precious movable goods, neither licitly nor validly. Lugo Resp. Mor. 1. 4. d. 31; E. M. By Roman Law, judges and their officials are specially prohibited from buying in the place where they exercise jurisdiction, except things necessary for food, clothing, and daily use. Likewise guardians, curators, and persons subject to them cannot buy the goods of those who are under their care or guardianship, under penalty of nullity.

Purchases are also prohibited to all public administrators; just as the same cannot receive donations. L. unic. C. de Contract. iud.; L. Praesides Dig. Si certum petatur; L. Non licet, L. Si in emptione § ult. de Contrah. empt. By the more recent Laws the following are prohibited: Debtors from selling those immovable goods of their own which have begun to be proscribed by creditors, after the transcribed mandate, commonly precetto, for payment, namely insofar as the creditors' interest is concerned. C. I. 2085; C. G. 686. - Those who have made cession in court; indeed alienations made from the day of cessation of payments are invalidated according to C. I. Comm. 709; and those made within the ten preceding days before cessation of payments are null according to C. G. Comm. 446.

Those who administer goods of a Community or of any public Institute; and those who, in an office, ministry, or public duty, provide authority for goods to be sold, or are present for it; guardians, protutors, curators; parents as regards buying the goods of children who are subject to their power; procurators to whom someone has committed something to be sold in his name; all these, under penalty of nullity, are prohibited from buying the aforesaid goods, even under auction. C. I. 1457; C. G. 1596; C. H. 1459; C. L. 1562, 1565.

Those who, because of office, act in court, as magistrates, clerks, advocates, procurators, indeed also notaries, are prohibited from buying back, likewise under penalty of nullity, lawsuits and litigated rights whose cognition pertains to the curia, tribunal, or praetorship of which they are part, or in whose jurisdiction they exercise office. C. I. 1458; C. G. 1597; C. H. 1459; C. L. 1562, 1563. Cf. C. A. 879; C. B. 456 ff. The purchase and sale of immovables is prohibited to minors, wives, and interdicted persons without the formalities prescribed by law. - Purchase and sale is specially forbidden between spouses, except in a few cases, according to C. G. 1595; and according to C. L. 1564, and C. H. 1458, unless they were separated as regards goods. Sometimes the right of preemption can be reserved for someone. C. B. 1094 ff. Then others cannot buy.

What things can be sold? Sacred things cannot be sold. Cf. 508 ff. Things of public right also, such as public roads and a public forum, cannot be sold. Inst. 1. 3. t. 24. § 4. But by the very Natural Law, the sale of those things is prohibited which by their nature can serve only for evil, e.g., defamatory pamphlets, lascivious pictures, etc. Nevertheless, the sale of these things, although prohibited, is not for that reason null; whence the seller is not bound to restitution. Gousset 836. By Roman Law anyone can sell all his own goods, both present and future, even together, even those which are had in hope, such as future fruits of a field. The things of another can also be sold, e.g., by reason of pledge, mortgage, etc. But no one validly buys his own thing, unless the seller has some right in it. L. Suae rei, L. Si in emptione § rei suae Dig. de Contrah. empt.

By the more recent Laws whatever is in commerce, that is, in the patrimony of individuals or of moral bodies, can be sold; for commerce is the reciprocal right of alienating and acquiring; provided that a particular law has not prohibited alienation of some thing. C. G. 1598. Future things also, such as fruits, grains, offspring, can be sold; whether the right to them is sold, and the sale is aleatory, which is at once valid; or the body, or fruits to be born, are sold, and the sale is under condition, which then will be valid when the fruits are born. Nevertheless the succession of a person still living cannot be sold, even with that person consenting.

C. I. 954, 1460; C. G. 1600. Purchase and sale also is prohibited of the goods of minors, wives, absentees, and interdicted persons, when the formalities prescribed by law have not been observed. Gousset on a. 1598. But incorporeal rights can be sold by Positive Law itself, or also transmitted by any other title, such as promissory notes, credits, servitude, usufruct, right to an opened inheritance; delivery of these is made by remitting the promissory notes or other authentic writings. But if litigated rights are sold, it is lawful for the debtor to redeem them from the buyer, with the price expended restored to him with interest. C. I. 1538 ff.; C. G. 1689 ff.; C. B. 433. Finally an inheritance already devolved to an heir can be sold; and for a sale of this kind there are special positive laws to be observed. Already devolved to an heir; for there is no inheritance of a living person. C. B. 2371 ff. Cf. here 1337. - C. I. 426, 427, 430, 433, 435, 2113, 2114; C. G. 538, 2226, 2227; C. L. 1553 ff.; L. 7 de Haered. vel act. vend. Ecclesiastical goods, as has already been said, cannot be sold without Apostolic beneplacitum. E. M.

What is price, and of how many kinds is it? Price is how much something is worth to all. This saleable value is determined from the suitability of the thing, so that it can be exchanged with other things in human commerce. To all, i.e., commonly, not individually to each person. - One price is legal, another common, another conventional. Legal price is that which has been established by the public authority of the Prince or magistrate, so that it not be exceeded; whence this price is said to consist in the indivisible, since it excludes both increase and decrease as long as the law lasts. Common, or natural, price is that which is imposed on things by the common judgment of intelligent men, the diverse circumstances of things having been weighed.

Hence common price does not consist in the indivisible, but admits a certain latitude. Common price is subdivided into highest, middle, and lowest. Here it must be noted "that the price of cheap things has a lesser latitude than that of precious things; for wine, or something similar, which is worth five, can be sold for six or four; or if it is worth ten, it can be sold for twelve or eight; or if it is worth one hundred, it can be sold for one hundred five and ninety-five." L. 804. But since price, especially common price, depends on several circumstances according to which it is usually judged, the aforesaid rule for defining highest, middle, and lowest price seems somewhat severe and scrupulous. Conventional price is that which is determined by the free agreement of the contracting parties. - L. Si servum 33 Ad leg. Aquil.; C. A. 1058, 1059; Lugo d. 26. n. 38, 39; St. Thomas 1. 2. q. 96. a. 1 ad 3; 2. 2. q. 77. a. 1 ad 1, a. 2 ad 2.

From what causes does the price of things usually increase or decrease? - Resp. To the 1st: The price of things generally is taken from their utility in order to human uses, and according as this utility is esteemed in society or the community. But specifically the price, even just price, is usually increased from the following causes: From scarcity of merchandise, or of some thing, e.g., wine, grain, etc.; for the rarer something is, the dearer it is, according to the common axiom. From the common superabundance of money; for the more something is superfluous, the less it is esteemed.

From the multitude of buyers; for the more numerous the buyers are, the more necessary and useful the merchandise is esteemed. - From greater labor and danger in acquiring merchandise, or greater expenses; for all these things are estimable by price. - From greater labor in selling merchandise, as, e.g., if someone must sell something in small retail portions; for the greater labor in weighing, measuring, etc., is estimable by price. - The price can also increase from the seller's own affection for some thing; and this is called the price of affection. A fortiori it can increase because of the convenience which the seller receives from it; because, as affection, so also convenience is truly estimable by price, since deprivation of the thing is then greater for him. But by no means can it increase, at least according to the common opinion, because of the special affection or utility of the buyer; otherwise what is not one's own would be sold. St. Thomas 2. 2. q. 77. a. 1. Moreover, if it were lawful to increase the price because of the buyer's utility, then contrary to the doctrine of Benedict XIV it would also be lawful to demand usury from a loan because of the borrower's utility. Moreover, if from the circumstances it is established that the thing is commonly esteemed at more because of that special utility which it will bring to the buyer, it will be lawful to seek a greater price. Thus sometimes a little field, which in itself is worth little and offers almost no utility to the owner, is of very great value to the owner of a neighboring estate; and therefore it is justly sold at that price which seems equitable to most people, that matter being considered. The price can increase because of delay of payment, provided nevertheless that it is contained within the latitude of the just price, or the legal rate for mutuum is not exceeded, or there is reason of some title of emergent loss, ceasing profit, danger of the principal, frequency of buyers who are increased thereby, custom of the place, etc. The reason is clear from what was said above concerning just interest. - Likewise a thing can be sold more dearly if the seller is going to sell it for more at another time, or if the price is to be handed over by the buyer at a time when the thing will be worth more. Finally, a thing cannot be sold beyond the just price for this reason, that the seller from his own ignorance or imprudence, or even from a fortuitous event, bought it at a greater price, or underwent greater expenses than others commonly pay or undergo. The reason is that prices of things do not increase or decrease from what happens to one person or another, but from what commonly happens. Nor, from the fact that some private merchant has suffered theft or shipwreck, is the price of things usually increased in the estimation of the people; just as the price of grain is not usually increased because one or another farmer has lost the fruits of his fields by fatal hail. But it would have to be said otherwise if many merchants had lost their merchandise in shipwreck, because the merchandise, having become rarer, would by that very fact increase in price. Ithur. Cas. 4. n. 11; Elbel 587; L. 768, 801-811, 829; Gousset 840.

Resp. To the 2nd: The price of things usually consequently decreases from opposite causes: From abundance of merchandise; for, as has been said, the more something is superfluous, the less it is esteemed. From scarcity of money, for the rarer this is, the dearer. From scarcity of buyers, and accordingly it is lawful to buy more cheaply in favor of a seller who is seeking a buyer; because voluntary things become cheap according to common estimation. Hence at least probably it is also lawful to buy more cheaply where merchandise is sold because of poverty; for the seller's need does not cause common estimation to change. From the intrinsic cheapness of things, or from greater ease in acquiring or preserving them, or from the danger to which things are exposed, e.g., with war or shipwreck threatening, etc. From lesser labor in selling things, as, e.g., when things are bought in gross, i.e., a great quantity of things is bought together and in a heap for one price. It can also be bought more cheaply if the thing is to be handed over at a time when it will be worth less; or if the buyer is going to acquire it at another time for less.

From represented, commonly anticipated, payment of the price, a thing can likewise be bought more cheaply, provided one remains within the latitude of the just price, because present money, like present merchandise, is esteemed more than what is hoped for; or provided legal interest is not exceeded, for it is a certain virtual mutuum.

Hence the price of the same thing, because of diverse extrinsic circumstances, is usually raised and lowered within a short time, as is clear from the daily practice even of sellers and buyers. Ithur. Cas. 4; L. 801-811; St. Thomas 2. 2. q. 77. aa. 1, 2.

What price must be observed in sale and purchase? - In sale and purchase, speaking per se, the legitimate price must be observed; and, in defect of this, the just common price. The 1st reason is: because that which is established by public authority by office and for equity must also be observed in conscience. But legitimate, or taxed, price is something of this kind. Whence, if someone sells something to an ignorant buyer above the taxed price, he sins not only against legal justice, or obedience owed to the Prince, but also against commutative justice, and is bound in conscience before the sentence of the judge to restore the excess. But those who sell below such a price, if the price is taxed by law in favor of sellers, sin against legal justice and charity, insofar as damage to other merchants follows from this. The 2nd reason is: because, when authoritative taxation by the Prince and magistrate is lacking, there is no better measure of the price of things than the common estimation of men. Moreover, since common price is threefold within the limits of justice, namely highest, middle, and lowest, it is lawful to sell and buy at any one of these. - Speaking per se; for sometimes it is lawful to exceed the legal price, namely: 1. If it is not observed by the greater part of men, while the Prince knows and is silent; for then he tacitly approves. 2. If things are notably changed; for then the rate becomes unjust. 3. If merchandise is notably more precious or worse than usual; for the law touches things of ordinary goodness. Ithur. Cas. 4. n. 9; Elbel n. 500; L. 803; St. Thomas 2. 2. q. 77. a. 1, a. 2 ad 4.

If not only legal price is lacking, but also common price, because it concerns things not necessary for common living, such as jewels, precious paintings, ancient things, ancient codices, etc., more probably they are to be estimated according to the judgment of experts in that matter, with attention to the circumstances and regard for the novelty, antiquity, rarity, etc., of the thing. The reason is that they are regarded as suitable judges in things of this kind, as the people are in common things. "Nevertheless I except from these," says St. Alphonsus 808, "the use of an honest woman, which, since it is inestimable by price, she will be able without injustice to accept very much for it." Yet the opposite opinion appears probable to others, because in that case the just price seems to be that concerning which the contracting parties agree. The probability of this latter opinion can be admitted by limiting it to the case in which it is not a matter, on the one hand, of a thing which among experts has in reality great value, and, on the other, of a price altogether cheap; for then there is error in the very substance of the contract. Whence St. Alphonsus asserts that the buyer is bound to supply the price if, e.g., he buys for a few asses a precious gem which is regarded as glass. L. 819. Nevertheless, as the same St. Alphonsus notes ib., that price must be regarded as just concerning which each party agrees, if because of ignorance of the value he commits himself to the danger of lot. Moreover such things, which are not necessary for common living, admit a very great latitude of price. - L. 735, 801, 811; Ithur. Cas. 4. n. 10; Sporer de Matr. 583.

He resolves: For this reason an honest woman can by right demand even marriage with a most noble and most wealthy man, even a Prince, which, unless another stronger reason stands in the way, is consequently owed by right. An honest woman, and a fortiori a virgin; for a prostitute, since she is prepared to prostitute herself with all, does not herself greatly esteem, nor do others commonly greatly esteem, the loss of her honesty; whence she cannot demand a greater price than what is commonly given. Lugo d. 18. n. 47; d. 26. n. 49.

Whether it is lawful to buy below the lowest price precisely by reason of anticipated payment, before the merchandise is handed over? Resp. Affirmatively, by reason of various titles which are accustomed to come extrinsically to mutuum, if they are truly present and due equality of price is preserved with respect to titles of this kind. For it is in reality a certain mutuum. - Resp. Affirmatively, by reason of the proper nature of this mode of selling; since this manner of selling brings about rarity of buyers, multitude of sellers, and brings great convenience to sellers on the part of the buyers themselves. Lessius 1. 2. c. 21. n. 62; L. 811.

He resolves: Hence it is also lawful to sell more dearly because of delayed payment of the price, on account of the same reason of mutuum, and because this manner of selling, since on the contrary it brings about a multitude of buyers and rarity of sellers, increases the price of the thing according to common estimation. L. 811; Less. l.c. n. 57; Gousset 841.

Whether names of debts or credits can be bought more cheaply because of certain and anticipated payment? Resp. Negatively as regards "promissory notes, which are commonly called fides crediti, for which no moral danger is present, provided that, because of distance, collection would not be inconvenient or dangerous for oneself, on account of him who must be sent to collect." L. H.

A. tr. 10. n. 179. - Resp. Affirmatively, if the credit is uncertain or of difficult collection, "even if it is easy for the buyer to collect it whole; because price is taken from common estimation, not from the circumstance of the particular buyer." If the credit is liquid, it is disputed. The first opinion denies. The reason: "because an action to a liquid credit, in reality, when no danger or expense for recovering it is present, is worth as much as the money owed itself." The second opinion affirms. The reason is that, since in practice these credits are commonly liable to dangers and inconveniences of this kind, they decrease in price according to common estimation. "But in purchase, only the estimation of men constitutes the just price of things, and here provides the title of buying for less." L. 829, 830. Moreover, "because they are equivalent to money lent, therefore from the same reason as in mutuum, it is lawful to perceive moderate profit, according to the legal rate."

Gur. 894. This sale is perfected as soon as buyer and seller have agreed concerning it as regards the credit, or any other right whatsoever, and as regards the price. But, so that it may be valid with respect to third parties, it must be announced to the debtor, or accepted by him by authentic act. Therefore the debtor is freed if before this he has paid the prior creditor. C. I. 1538-1540; C. G. 1689-1691; C. H. 1327; Lugo Resp. Mor. 1. 6. d. 18.

Whether you can sell at the current price a thing which you know will soon be worth less? Resp. More probably and more truly, affirmatively. The reason is that the present price is just and not yet changed, provided nevertheless that this knowledge is private; for if it were common, the price would already be changed. Sometimes, however, you can sin against charity, if, e.g., by such a sale the buyer would be reduced to extreme or grave necessity; for just as charity commands that we assist a neighbor gravely in need, so it forbids that he be reduced to poverty so that we may acquire riches for ourselves. Nevertheless, where it concerns only grave necessity of a neighbor, it is not sufficiently established whether the sin against charity is always grave, because charity does not forbid someone to consult for himself by using his own right, even if damage accidentally comes to another from this.

Molina, however, excepts the case in which someone, knowing a law that has been framed which diminishes the price, but not yet promulgated, would sell his goods for more because of that knowledge, or would sell at the current price, or would by no means sell. The reason is that public law ought to be equal and common to all subjects; and a Prince would sin against justice if, before it was promulgated to all, he manifested it to certain persons, who, anticipating the promulgation, would profit on the occasion of it with loss to others; and by the same reason, he who used knowledge of it to the prejudice of others, in whatever way that knowledge had come to him, would sin against justice, with the burden of restoring damages which came to neighbors by that way." But handing down the difference between this case and the other case, in which someone knew that other merchandise of the same kind would soon arrive, while the buyers were ignorant of it, he adds: "He who uses knowledge of a law before it is promulgated to enrich himself with loss to others uses knowledge of a thing which ought to be common to all, to the detriment of others, and consequently does injury to them; but he who, for the same effect, uses knowledge that merchandise is arriving does not use knowledge of a thing which ought to be common to all; rather, this pertains to the industry, art, and event of fortune of merchants." De Iust. et Iur. t. 2. d. 354. n. 5. - But others deny this. For abuse of power is one thing, if, e.g., for this reason the Prince or magistrates should defer promulgation of the law until they themselves could sell their merchandise or money, for the Prince and public magistrates do not have power except for the common good of subjects; but mere use of knowledge is another thing, which the Prince and other magistrates legitimately have, and which they can legitimately use, if from some reasonable cause the promulgation of the law must be deferred. - L. 824; St. Thomas 2. 2. q. 77. a. 3; Lessius 45-48; Lugo 140-143; Gur. Cas. 90; Struggl tr. 3. q. 1. n. 16.

Whether you can sell at the current price a thing mixed with another cheaper thing? - These are the words of Molina, de Iust. et Iur. t. 3 d. 353. n. 33: "When the price is not taxed by law, and something is admixed to the things which are sold, as water to wine, or some unusual things to medicines, a distinction must be made. For if the mixtures can bring harm, then those selling things mixed in that way are bound for all subsequent damages, and likewise to restitution of that by which those things are worth less to the buyer than what he gave for them.

But if they do not bring harm, yet the things are less useful for that for which they are bought, then those selling are bound to restore what they are worth less to the buyers for that for which they are bought; wherefore, if they conduce nothing to that, they are bound to restore the whole price; as if a medicine because of the mixture is rendered useless for that for which it is bought. But if the things mixed in this way are useful for that for which they are bought, and as much is deducted from the price as is fair because of the mixture, then those selling are not bound to restitution, because they have not exceeded the just price; nevertheless they sin, unless compelled by necessity to do this, as because otherwise they cannot draw out the just price of the thing, for example, of wine, unless they mix a little water with it; or unless the thing with that mixture truly is worth what is given for it, and the buyer would not buy a better one for that price. Nevertheless sellers must be kept away from frauds and deceptions of this kind." The same must be said if artificial things are sold as natural, e.g., artificial wine, artificial butter, as natural wine and natural butter.

If the artificial thing is equally useful as the natural, and the price is suitably diminished, and the buyer does not declare that he wishes to acquire for himself a natural thing, not an artificial one, the contract is valid, and there is no obligation of restitution. - L. 820, 821; St. Thomas 2. 2. q. 77. a. 2. Nevertheless to substitute artificial wine for natural in sale is per se injustice. And the same is per se true in any other thing, since there is substantial error; and any buyer would reasonably be unwilling if he knew of the substitution.

Whether merchants are bound to restitution who by fraud or lie induce buyers to buy their merchandise at a greater price than they would have bought it, although they do not exceed the highest price? Resp. As regards fraud, affirmatively. The reason is that fraud is the efficacious and unjust cause of the damage which the buyer suffers; but each person has a strict right not to be induced by fraud or deceit to suffer any damage. - As regards a lie, per se the same would have to be said, since it also is of itself an unjust cause of damage. Nevertheless it must be noted "that commonly faith is not given to the lies of sellers, since these are sufficiently known to be common stratagems; whence they are regularly not bound on account of this to restitution.... I said regularly, because if sometimes the seller certainly noticed that the buyer believed the lies, and therefore bought for more, then indeed he is not to be excused from injustice." L. 805. Wherefore he is bound to restitution if by lies and frauds of this kind the seller truly induced the buyer to buy merchandise at a greater price, although he does not exceed the highest price. 1 Thess. 4:6. - St. Thomas, Quodl. 2. a. 10.

Whether or how do merchants sin who, when questioned about the price of merchandise, notably exaggerate it? If they truly intend to sell at this price, they sin against justice by wickedly desiring another's property; and they are bound to restitution if in fact that price is paid to them. But if they intend only to give the buyer a place for offering his own price, so that thus they may come to the just price, they are excused, because it is known and customary for merchants to speak in this way, so that they may bring buyers to the just price.

Whether those who diminish or adulterate a thing sold at the lowest price before delivery sin against justice? Resp. Affirmatively, because they act against the pact entered into with the buyer. For although it is lawful to sell at the highest price, nevertheless it is not lawful for a merchant who sells at the lowest or middle price secretly to acquire for himself a middle or highest price by diminishing the quality of the merchandise, or by subtracting from the measure or weight; otherwise agreements would be entirely useless. Lev. 19:35; Prov. 20:23. Exception: if the price either has been taxed by law, or is unjust by the malice of conspiring buyers. For equality is the essential property of this contract. Hence then it is not injustice to compensate oneself by diminishing the quantity of merchandise. Lugo 137; L. 822.

Whether European merchants sin against justice who sell knives, mirrors, and other things of this kind among Indians at the highest price, which among us are held to be of cheaper price? Resp. Negatively, because although these things are cheaper in our regions, nevertheless they are commonly esteemed highly by Indians or Chinese, etc.; but common price is determined from the common estimation of men of the region. - L. 804, 808.

Whether those sin against justice who buy precious things for a cheap price when they are exposed for sale among secondhand sellers, commonly rigattieri? Resp. Negatively, because those things are judged to have lost the old price and to receive another by custom, or by agreement of the contracting parties. Whence things of this kind receive very great latitude with respect to price. Thus sometimes books are bought for a few asses which could have been sold for five or ten francs. The same must be said of the purchase of old furniture, because these things are commonly held to be of lesser value. - L. 807.

Whether conventional retraction, or a pact of retro-sale in favor of the seller, is licit, namely so that at a certain time, or whenever he wills, the buyer is bound to resell the thing to the seller? Resp. Affirmatively. And this is established from the law of Lev. 25; L. 7 de Pact. inter empt. et vend. comp. C.; L. 2 ib.; Less. 1. 2. c. 21. n. 113; Lugo d. 184. The reason is that the owner of the thing can dispose of his thing as he himself wishes, provided justice is preserved. Therefore, with due diminution of the price made for the burden imposed on the buyer, a pact of this kind is licit. How great ought such diminution to be?

Some wish a third part of the price; others hold that a fourth part of the price must be deducted; others more truly think that the matter must be defined from the judgment of prudent men, all circumstances having been duly weighed. C. Ad nostram 5 de Empt. et vendit.; L. 812. But the buyer, in redemption of the thing on the part of the prior seller, can demand that a greater price be paid to him than that which he himself paid. "Because by the very fact that the thing is sold with a pact of retro-sale in favor of the seller, it must be sold at a lower price below the just price because of that added burden. But when it is afterward sold to the same seller, it is given without any burden. Therefore it must then be bought at the full just price. Therefore the buyer cannot be compelled afterward to resell at a lower price without injustice."

Hence a buyer who bought a thing at the lowest price can demand the highest price from the prior seller. For one selling his own thing can demand the just price which the thing is then worth. And at least he can demand that the price now be increased as much as it had been diminished in the prior purchase. Lugo ib. n. 192, 199. - But since the buyer meanwhile enjoys that portion of diminished price, and the convenience and fruits of the thing, he can indeed in the pact of retro-sale also demand by pact that the thing cannot be redeemed by the owner at a price lower than that at which he himself had bought the same from him, but he absolutely cannot demand by pact that it be redeemed by the owner only at a greater price.

For absolutely, to preserve justice, it suffices that the owner, redeeming his own thing, pay a just price; and the just price in the case is not always necessarily a greater price. But a pact is licit that the seller can redeem his own thing by restoring the same price which he received. For then it is a certain simple dissolution of the sale from the mutual will of the contracting parties. Moreover, there is no injustice in the buyer receiving only as much from the prior seller as he himself gave to him. For if this price is just, the matter is clear; if it is less than just, it can be sufficiently compensated to the buyer by the convenience and fruits of the thing meanwhile received by him.

C. I. 1515; C. G. 1659; C. H. 1507; C. A. 1068; C. B. 497. Moreover, in order that a pact of retro-sale be licit, it is necessary that the danger of the thing sold not be with the seller, unless the price is increased by a just estimation of the danger. But the thing to be restored by the buyer is understood to be such as it was when accepted by him, without deterioration or new burden. L. 812; C. H. 1519, 1520; C. I. 1528; C. G. 1673; C. A. 1069; E. M. Therefore the buyer, as true owner of the thing, receives all its fruits and exercises all rights inhering in the thing meanwhile, until the seller exercises his right of redeeming the thing. C. G. 1665.

Retro-sale is had as soon as the seller offers the price to his buyer. Nor is it necessary that the price here and now actually be given. As sale is perfected by simple consent, so also retro-sale. Hence the prior sale is immediately dissolved, and the seller can vindicate his own thing from any possessor. Cf. Troplong on a. 1662. But together with the thing, the increase made to it by alluvion must be restored. Likewise the part of a treasure found in a field must be restored. For the former accedes to the thing and follows the thing; the latter likewise by right of the soil is owed to the owner of the thing. But the buyer's ownership, while the condition of retraction is pending, seems to remain suspended. Cf. Troplong on a. 1673, n. 766 seq.

Whether a pact of repurchasing at the judgment of the buyer is licit? - "The first opinion denies ... because in reality the thing does not seem to be sold, but only given in pledge, so that the buyer perceives fruits from his money, which he can recover at his own pleasure.... The second and most common opinion affirms.... I certainly think this more probable, yet with these conditions: 1. That there be a true intention of buying and selling. 2. That the buyer pay a greater price, according to the estimation of this burden which he imposes on the seller. 3. That the seller not be obligated to repurchase at the same greater price which he receives.... Hence I judge that in such a contract the buyer cannot oblige the seller except to paying only the price according to the value of the thing at the time of repurchase; and conversely, if the thing increases, it increases for the seller, H. A. tr. 10. n. 181; for the excess of the just price given to the seller pertains wholly to him, by reason of the burden imposed on him of repurchasing at the judgment of the buyer. With these conditions preserved ... the burdens are compensated on each side." L. 813; E. M.

He resolves: Consequently a pact of retro-sale in favor of both seller and buyer at the same time is licit, provided due equality of price is preserved, so that it is less than the price which would be demanded if the pact were in favor of the buyer alone, but greater than the price which would be paid if the pact were in favor of the seller alone. Wherefore, since burden is compensated by burden, it suffices to sell the thing at the ordinary price.

What is established by more recent laws concerning retro-sale? According to C. L. 1587, retro-sale is prohibited. According to C. I. 1515, 1516, 1520, 1528; C. G. 1659, 1660, 1664, 1673; C. H. 1507, 1508, 1510, 1518, 1520, a pact of redemption or recovery in favor of the seller alone is lawful, yet in such a way that the faculty of recovering his own thing is not extended beyond five years, according to C. H. beyond four years or beyond ten years; once this time has elapsed, the thing irrevocably becomes the buyer's.

Within this time the seller can pursue his own thing even with another who has acquired it from the buyer. - The seller seeking back his own thing must not only restore the principal price, but also pay expenses for the contract of sale, and those which the buyer underwent for necessary repairs of the thing, and likewise those which increased the value of the estate. Unless he has satisfied all these things, he cannot obtain possession of the thing. But when he returns into possession of the estate, he receives it immune from any burden and mortgage by which it was burdened by the buyer; nevertheless he is bound to observe the contracts of lease which the buyer entered into without fraud; and according to C. I., if they were not constituted beyond three years.

According to C. A. 1068-1071, a pact is permitted of repurchasing at the judgment of the seller, and of reselling at the judgment of the buyer. The thing and the price are to be restored in each case, unless the thing has been made better or worse; for then compensation is owed. According to C. B. 497 ff., a pact of repurchase at the judgment of the seller is permitted at the same price of sale, unless meanwhile the thing has become better or worse. The right of repurchasing can last up to thirty years for estates, up to three years for the remaining things. But since these laws were passed for the cause of public utility, therefore they have force even in the forum of conscience. Cf. C. H. 1521 ff.; C. A. 1068 ff., 1072 ff.

What is mohatra, and is it licit? The contract mohatra is that by which someone buys merchandise at a greater price on credit, with an explicit or implicit pact that the same thing be immediately sold back to the seller at a lower price and for counted money. - Such a contract is altogether illicit.

This is established 1. from proposition 40 condemned by Innocent XI. 2. Because it is disguised usury; for the burden is imposed on the buyer of immediately selling back at a cheap price without any compensation and without any just title which is otherwise found in mutuum. - If nevertheless the thing is sold back without a prior pact, even for less and to the same seller, provided every usurious intention is absent, of itself it will be licit; because then no burden is imposed against natural equity. And, if the excess which is demanded is a suitable profit by reason of mutuum, then no illicit usury is had in it. - L. 813; E. M.

What is sale by auction; is it licit; what is its nature? Sale by auction, or through bidding, is that which is made by a herald, and in which the thing is ascribed to the final bid. Sale by auction is licit, whether it is made with the consent of the owner or against his will, or by public authority; whether it is bought below the lowest price or sold above the highest. The reason is that in the first case there is a conventional price, but in the other "public power approves as just that price which is proved publicly by the concurrence of buyers." L. 808; C. G. 1686. Hence, if buyers concur, the thing becomes more estimable; if they do not concur, it is held cheaper since the thing is offered voluntarily; and it can be sold for as much more, bought for as much less. Consequently, in it there is no place for rescission under title of lesion, nor for redhibition. C. I. 1308, 1506, 1534; C. G. 1649, 1684. But eviction does not cease in it; and, when the thing has been evicted, the price must be restored to the buyer in forced sales, not by the debtor whose thing was sold and to whom it profited by payment, but by his creditor, because it was paid to him without cause. C. I. 1237; C. G. 1377; C. B. 156.

The price which is determined by the concurrence of buyers also has place in the lease of work and labor, e.g., in building a house, in conducting business.

Whether the seller can withdraw his own thing once bidding has begun, if a lower price is offered? Resp. Negatively per se. The reason is that buyers publicly summoned to an auction acquire a certain right to the saleable thing, insofar as a tacit stipulation is made that it yield to the one offering more. Nevertheless the rigor of this doctrine must be tempered if a contrary custom is in force, by force of which the contracting parties consent to this, that the seller withdraw his own thing if it would be sold below the lowest price. But this inconvenience is prevented by establishing from the beginning the lowest price at which bidding should begin.

Whether the seller can send fictitious bidders so that the price of the thing may increase? - Resp. Negatively. The reason is that this is fraudulent, especially if it is done with money offered to them, since it tends toward increasing the price, and thus toward deceiving sincere buyers, and accordingly does injury to them, since they are the cause that the price increases from that fraud, and not from the natural concurrence of things, namely from the free concurrence of buyers. Wherefore then restitution in integrum belongs from fraud. With money offered; this is permitted to the buyer, so that he may redeem the unjust vexation of other bidders; whence it is also permitted to the seller to draw other buyers in this way to the bidding, to redeem unjust vexation, so that his things may be sold at least at the lowest price. Much less is it lawful to feign wanting to participate in bidding, so that someone may extort something from true bidders. It is evident deceit and fraud.

Whether he whose goods are sold in favor of creditors can send friends to buy them in his name? Resp. Affirmatively, if the bidding is forced, or if it is made by public authority; for he whose goods are sold ought not to be of worse condition. Besides, he himself is not properly selling, since the sale is made against his will. Therefore. - Resp. Affirmatively also if the bidding is voluntary, because, as the buyer can turn away other bidders by using a request, so the seller, by using the same request, can summon other bidders; and if these, though not asked, could bid in favor of the seller, why could they not do the same when asked, provided that all fraud is absent in this matter, namely if they buy in their own and true name; and, if they buy in the name of the seller, by law or by custom he can withdraw his own thing when the thing would not obtain at least the lowest price. For if he can then withdraw it, he can also buy in this way.

Whether a buyer can make a pact with others that they not bid, or not offer more? St. Alphonsus denies it "at least in the case in which by sentence of the judge a thing is exposed to auction. The reason is that then the owner of the thing is altogether bound to hand over the thing to the one offering more; and therefore the buyer inflicts injury on him if, by offering only the lowest or middle price, he impedes the seller from the attainment of the highest price, to which he has a right, namely that he not be impeded from attaining it."

L. 808. - Several, however, except the case if the buyers are joined by partnership, or as though joined, as brothers, friends, etc., because they make as it were one moral person, and it cannot be demanded that they bid against themselves. Others also probably except if the custom is in force that the seller withdraw his own thing when a lower price is offered to him; because if he himself can impede the price from being too small, equity also requires that he not complain that buyers agree lest the price be increased too much. - Others, however, affirm absolutely. Reason 1: because in any sale by auction per se the owner is bound to hand over the thing to the one offering more. 2. By making a pact with someone, the buyer does not impede the owner from obtaining the highest price of the thing, for others can concur and offer. 3.

The seller does not have a right that someone not be impeded in any way whatever from concurring, but that he not be impeded by force and fraud; otherwise he could not be impeded even by requests. 4. As anyone can freely not concur at auction, so he can freely oblige himself not to concur. Nevertheless civil laws approve this in no way. C. I. Poen. 299; C. H. Poen. 555. - Gousset 843.

What is monopoly, and whether it is licit? - Monopoly, as to the name, is the same as the sale by one. As to the thing, it is the power of selling existing in the hands of one or of a few. Monopoly can occur in four ways: 1. If the Prince, for a just cause, grants a privilege to someone that he alone sell some kind of merchandise; and this certainly is licit, namely when it contributes to the common good, with a legitimate price fixed. Others, however, sin against justice if they themselves make and sell similar merchandise. 2. If a merchant by force and fraud prevents other goods from being brought in, so that he may sell his own goods to the damage of the commonwealth; and this certainly is illicit, and he is bound to restitution of the damage, e.g., if he spreads false news that ships have been sunk, or similar lies. 3. If one or a few buy all the goods so that afterward they may sell them at as high a price as possible. And this is illicit if the things are useful and necessary for life, and do not pertain only to luxury and delicacies, and if the highest price is that which results from the very fact of monopoly. 4. If sellers conspire among themselves about the price, so that they do not sell for less; and if the price is just, this of itself is not illicit. L. 814, 815.

This question of monopoly, as to its various cases, can easily be extended to the workers themselves, and the various resolutions can also be applied to them. But this question, as regards workers, is quite different from the other question of ceasing from work and labor, which, after a freely entered contract for the hiring of work, is not only illicit, but also unjust of itself, and very harmful to the good of private persons and to the good of the state.

Whether merchants sin against justice, or against charity, who, at the time of harvest or vintage, buy all the wheat or wine of a region at a very low price, so that afterward they may sell it more dearly? It is certain that this is licit if the goods bought are not necessary for the sustenance of life, or for the common condition of the commonwealth, such as precious gems, noble horses, women's adornments, and the like. L. 816. But if the discussion concerns things necessary for the sustenance of life, the negative answer is more probable, as it seems, with respect to justice, provided they do not sell above the highest price which would prevail apart from monopoly. The reason is that they violate no one's right. The negative answer is also more probable with respect to charity, provided they do not induce others to sell more dearly, nor themselves sell above the highest price which would have place apart from monopoly; because they use their own right. For no one is bound to neglect his own advantage in order to avoid another's damage which he is not bound to avert. - L. 816, 833; Lugo 176; Less. 150-152; Molina d. 345, n. 7. - 19.

Whether merchants sin against justice and against charity who conspire not to sell their goods except at the highest, although just, price?

As regards justice, there is no sin, since the highest price is still a just price. The highest price, namely, which would exist apart from monopoly. For a price cannot be judged just which arises from this conspiracy. The justice of a price cannot depend on the mere judgment of the seller and buyer. Thus likewise workers sin who agree among themselves not to hire out their work except at a price exceeding the highest; the highest, that is, with this agreement excluded. But as regards charity, the answer is affirmative, because although charity does not oblige one to sell below the highest price, nevertheless it seems to oblige one not to dissuade others from selling at a lower price. This would certainly be grave where the matter concerns things useful and necessary for life, and grave for the poor; indeed also for those who are not poor. Thus, although charity does not oblige you to give alms, nevertheless it obliges you not to dissuade others who are willing to give alms. But it would be against charity and against justice if other merchants were prevented by fraud and force from selling goods at a cheaper price. An injury would be done to them and to the buyers. Lugo 173, 175; L. 817.

Whether, once a monopoly has been made by merchants concerning an unjust price, it is licit for others to sell goods at the same price? The first opinion affirms, because the just price is that which commonly runs, from whatever source this comes. The second opinion, which seems better to St. Alphonsus, 817, denies. "The reason is that a price increased through injustice is always and of itself unjust, and must be brought back to justice."

What is sale through brokers, commonly sensali? - Sale through brokers is that which is made not immediately by him to whom the things belong, but through others by commission; and these are called brokers. Brokers can be either merely friends, or hired for this by a special wage, or hired for various works at an annual price.

Whether a broker who sells above, or buys below, the price designated to him, can retain the excess of the price for himself? Resp. Negatively, generally speaking. The reason is that he has no title for retaining anything. For 1. not by reason of the thing, because it is not his, but the owner's. 2. Nor by reason of labor and industry, at least by a strict title of justice owed, because if he has been hired for a stipend, he has a right to nothing else; but if he gives his industry gratuitously, he has already renounced wages. 3. Nor by reason of the price designated; for the designation of the price made by the owner is commonly understood to mean that he is not to sell below that price, but by no means that he is not to sell above it. - Except: 1. If by extraordinary and undue labor, or by wholly special industry or diligence, he has made the thing better. 2. If the owner has expressly or equivalently declared that he requires nothing beyond the determined price; for then the excess can be retained. 3. If the owner knows the broker's manner of acting and ratifies it. L. 825;

C. A. 1086.

Whether a broker can buy for himself a thing to be sold at the price determined for him, and afterward sell the same thing as his own at a greater price? - Resp. Affirmatively, with two conditions in place, namely: 1. That, after employing moral diligence, he does not find a buyer who offers more; otherwise he would act against his office and the will of the mandator. For that price is determined, at least regularly, not so that he may not sell for more, but so that he may not sell for less. 2. That he buy the thing for himself not fictitiously, but truly, so that he undergoes its risk; and if by chance he does not sell it for so much, nevertheless he pays the determined price; otherwise equity is not preserved. Cf. 1137; L. 825; C. A. 1087, 1088; C. B. 181, 456-458.

Whether a broker can retain for himself those things which the seller gives gratuitously with regard only to him? Resp. Affirmatively, if there is certainty of a true donation, because, speaking absolutely, a merchant can yield something from his own profit to some broker so that he may bring him to his shop. But for this it is required that he truly be disposed to sell to any other person at the higher price, and that in fact he ordinarily sell in this way. The confessor, however, ought not easily give credence to brokers who assert that such donations have been made to them. L. 825; H. A. 189. Thus, concerning cases of this kind, St. Lig., 826: "It must cautiously be permitted to tailors buying cloth for others to retain something from the price; for sometimes merchants rather pretend to give to them than actually give, so that, if the owner himself were to approach, he would obtain the thing for the same price. Moreover, if the tailor faithfully conducts the owner's business, and the merchant truly gives something to him gratuitously, because he frequents his shop, or in order to attract him to frequent his shop, the tailor could licitly retain what was given, provided he has employed moral diligence to buy from other merchants at a lower price."

What is exchange, and what are its properties? According to Roman Law, exchange is a real contract, and therefore it takes its beginning only from the delivery of the thing. Wherefore it does not follow all the laws of sale and purchase. Inst. l. 3, t. 24, § 2. According to C. I. 1549 ff.; C. G. 1702 ff., exchange is a contract by which each party obliges himself to give a thing, that he may have another. It is perfected by consent alone, as sale is. Wherefore at once the ownership and risk of the thing pass reciprocally to the other.

When one thing has been evicted, it is in the power of him who has suffered eviction either to demand compensation for the damage, or to reclaim the thing given, that is, to seek the restitution of his own thing. Nevertheless, according to C. I., rights acquired by a third party over immovables before the transcription of the petition for rescission remain safe. It can be perfected by private act, and even verbally. Yet in this contract there is no place, in the external forum, for rescission on account of lesion. But in the forum of conscience there is the same reason of compensation as in sale and purchase. Gousset, Cod. comm., art. 1706.

According to C. H. 1538-1541, he who has received another's thing by exchange cannot be obliged to hand over the thing which he promised in turn. He satisfies by restoring the thing received. He who has suffered eviction of a thing received by exchange can either demand the restitution of his own thing, or compensation for damages. In the rest, exchange is ruled by the same laws as sale. According to C. A. 1045 ff., the effective delivery of the thing is not necessary for the essence of this contract, yet it is required for its fulfillment and for acquiring ownership. He who does not fulfill the contracted obligation is bound concerning loss incurred and profit ceasing.

If meanwhile the thing wholly or beyond half perishes by fortuitous event, the exchange is held as not having been made. Other deteriorations are to the loss of the possessor. But if the thing has been exchanged in body, and individual things perish by chance, but not beyond half, they perish to the loss of the one accepting. The useful things of the thing, however, pertain to the possessor until its delivery. According to C. L. 1594, and according to C. B. 515, dispositions for sale are applied by analogy to exchange. For the difference concerns the price, in place of which there is another thing.

"1. Whether for alienations of bearer securities belonging to ecclesiastical entities, or to pious causes subject to the guardianship of the Church, the Apostolic beneplacitum is necessary, just as for alienations of immovable goods and precious things? 2. Whether the same faculty is required for exchanging the same into other titles or securities, even immovable ones? 3. Whether sellers and acquirers are subject to the ecclesiastical penalties sanctioned by Trent, c. 11, s. 22, de R., and by the Extravagant Ambitiosae, as well as by the Constitution Apostolicae Sedis? Resp. To the 1st: Affirmatively. - To the 2nd: Affirmatively, except in the case of urgent necessity, in which there is danger in delay and time is lacking to have recourse to the Holy See, the beneplacitum of the Ordinary nevertheless having been had in these circumstances, and under the law that the exchange be made into titles as safe as possible. - To the 3rd: Affirmatively as regards the penalties established in the Extravagant Ambitiosae and in the Constitution Apostolicae Sedis." S. C. C., Jan. 17, 1906. - E. M.

What is exchange of money? - Exchange of money is: the exchange of money with money, with some profit to the money-changer. Generally, he who deals in money and seeks profit is called a banker. But the one from whom exchange is sought is called the money-changer; the one who seeks it, the exchange-seeker. That emolument which the money-changer receives from the exchange of money with money is commonly called aggio. Exchange of money differs from sale, because in sale merchandise is exchanged for money, but in exchange money is exchanged for money. C. A. 1046. Ownership of the money is immediately acquired by the one accepting, before he has rendered what he owes, even according to Roman Law, since by this Law in exchange ownership is immediately acquired before the contract is completed from the other side. L. Cum precibus C. de Rerum permut.; L. 850.

How many kinds of exchange of money are there? - Exchange of money is one kind real, another dry. Dry exchange is fictitious exchange, e.g., when money to be handed over to another is feigned to be carried from place to place, so that thus something can be demanded for the transfer, although in truth it is not transferred. Real exchange is true exchange, by which money is truly and really exchanged for money; for instance, if gold is given for silver. Real exchange is one kind small or manual, when present money of one form or material is exchanged with money of another form or material; another kind is local, when present money is exchanged with absent money. This is done either when the money-changer receives money in this place to be restored by him in another place, or when the money-changer gives money in this place to be restored by the exchange-seeker in another place, e.g., at Paris. This exchange is ordinarily made through exchange letters, commonly cambiali. The money-changer drawing at Rome, the exchange-seeker also remitting at Rome, and the one who will pay at Paris, is called the drawee. And if a surety is added to those letters of exchange, this is called aval. - L. 851-854.

Whether dry or fictitious exchange of money is licit? - Resp. Negatively, of itself. The reason is that in it there is no title for receiving profit, since it is not true exchange, but a fiction of exchange. Hence St. Pius V, in the bull In eam, 1571, expressly declared it usurious; for it is disguised usury. It is said of itself, for by reason of mutuum there is licit profit, that which is licit in mutuum. E. M.

Whether real exchange of money, both manual and local, is licit?

Resp. Affirmatively, provided the profit does not exceed the price determined by law or by the custom of places. The reason is that there are several just titles for such profit: 1. The hiring of labor and office for seeking out, counting, and transmitting money. 2. Expenses in retaining a toll. 3. Insurance of the money up to the place where the money is to be paid. 4. Profit ceasing, loss incurred, and risk of the capital from the misfortunes of debtors. 5. The varying value of money in various places, whence it happens that money is worth more in that place in which it is to be restored by the money-changer than in that in which it is received by the money-changer. But if the contrary were the case, namely if the money were worth more in the place in which it is received than in the place in which it is restored, then by this title nothing would be licitly received; indeed compensation would have to be made up to equality. L. 851-854.

Whether the Frankfort exchange is licit, in which, namely, the money-changer gives money to be restored at the next fairs, so that a greater profit is demanded for a greater delay? Resp. Affirmatively, if there is the title of loss incurred, or another similar title. Affirmatively again, by reason of mutuum, if the legal rate is not exceeded. - Negatively, if it is demanded precisely by reason of delay; for it is usury. L. 855.

Whether exchange is licit for those who do not have the public office of exchanging money? Resp. Affirmatively. The reason is that they provide a thing useful to another. L. 851.

Whether a servant receiving gold money from his master, in order to satisfy the master's creditors, can make a profit by exchanging it with other money? "It is affirmed, because it is the fruit of industry, unless it is against the express or tacit will of the master." L. 856.

Whether one who receives counterfeit money can spend it? Resp. Negatively. The reason is, "because a defective thing cannot be handed over to another when the defect has not been disclosed. Nor from the fact that he himself was deceived can he deceive others, since the action by which he was deceived gives him no right to this." But if you have already spent it in good faith, you are bound to restitution "by force of the contract itself, by which you are obliged to pay the just price for the thing bought." L. 855. Yet you are bound to nothing if the other also has already spent it in good faith, since he has suffered no damage. But after that money has passed to others, now, practically speaking, it is morally impossible to know who has suffered damage, and therefore regularly no obligation of restitution is imposed; and when the matter concerns money of small value, for this reason also the penitent should not be disturbed. C. I. Poen. 440;

Lugo d. 28, s. 2, n. 6.

What can money-changers receive by reason of mutuum? They can receive 5 or 6 per 100 according to the legal rate for merchants, because they practice commerce in money. Indeed, it is permitted to them to receive 6 or 7 per 100 because of the dangers, expenses, and labors which they must undergo. For ordinarily money-changers need much money and many assistants in order to be able to discharge such an office, and they are exposed to many dangers. Cf. 1104.

What of the Bull of St. Pius V concerning exchanges? St. Pius V placed various restrictions to remove usury; nevertheless they testify that these no longer have force in most places. Lessius 93; Lugo d. 28, n. 107; L. 852; Benedict XIV, de Syn., l. 10, c. 5.

What is commerce? - It is properly when someone procures a thing for himself with the intention that, by selling it entire and unchanged at a higher price, or by exchanging it, he may gain profit. L. 831; St. Thomas, 2. 2, q. 77, a. 4, ad 2; Lugo d. 28, n. 20.

How many kinds of commerce are there? - There are three: economic commerce, artificial commerce or handiwork, and commerce properly and strictly such. Molina, d. 339, n. 2, says this: "A threefold kind of buying and selling is commonly distinguished. For one kind is that by which each person buys those things which are necessary for the sustenance of himself and his family, while superfluous things are sold.... Another is that by which something is bought so that, changed by industry, it may be sold.... To this kind pertains not only if someone buys wool so that from it he may make cloth, which he sells, or iron so that he may sell swords which he makes from it; but also if he buys birds or horses so that, after he has raised them and accustomed them to something, he may sell them. To this kind of commerce also pertains that by which a thing not bought, but from one's own goods or lands, changed into a better form, is sold. Finally, another buying and selling is that by which something is bought so that, unchanged, it may be sold more dearly for profit; and this is commerce in the most proper sense."

Whether commerce is licit? The first species of commerce is licit. "This," says Molina, l.c., "is as it were natural, and of itself is good and licit. Indeed it is ordered not to profit, but to suitable sustenance, and it pertains to householders and statesmen, not to merchants taken strictly." The other species of commerce is also licit. "This," says Molina, l.c., "is not mere commerce, because the thing thus bought is rendered better through industry and art." Wherefore there is sold not only the thing bought, but at the same time one's own industry and one's own work. Men of this kind are called rather workmen and artisans than traders or merchants.

Therefore there is no injustice in it, no illicitness, since it is very useful to private and public good. The third commerce also is of itself licit, since it too is very useful to private and public good, and from no other source does it necessarily, or of itself, contain any injustice or dishonesty. For as regards justice, it suffices that one in buying and selling remain within the limits of the lowest and highest price; and moreover the prices of things are accustomed to be diminished and increased according to the various circumstances of times and places. There is added besides the labor of these merchants, and likewise the enormous expenses to be made by them, so that they may always have necessary goods prepared for all. But the profit which is intended can be intended in an ordered and moderate way for a good and even pious end, and therefore neither from this head is there necessarily and of itself any baseness. St. Thomas, 2. 2, q. 77, a. 4.