XIII. On Census

What is a census? - A census is a contract by which someone reserves to himself or buys the right of receiving an annual pension. - The one buying is called the censualist, censitor, buyer, creditor. But the one selling is the censuary, seller, debtor. The pension itself is called the canon, or revenue, because it returns and is rendered each year. A census, as is clear, differs essentially from mutuum; for in the latter the borrower is principally debtor of the capital itself, but in the former the censuary is not debtor of the capital, but of the revenue, the right of which he has sold for the price of the capital itself. - C. I. 1778; C. H. 1604; C. L. 1644, 1645, 1706, 1707; C. G. 1909; Gousset in h. a.; L. 839.

How many kinds of census are there? - Census is manifold: 1. Reservative, by which the censualist transfers his own thing to another under a gratuitous or onerous title, e.g., he gives or sells it to another, with an annual pension reserved to himself from that thing. C. I. 1778, 1780; C. G. 530; C. H. 1607. - 2. Consignative, by which the censualist buys the right of receiving a pension from another's thing, whether movable or immovable; or from the person himself who obliges himself to provide an annual pension from his own art, commerce, or office. C. I. 1782; C. G. 1909; C. H. 1606; C. L. 1645. According to C. He. 782, 790, a land charge subjects the actual owner of the land to a payment in favor of the one having the right, for which he is answerable by the land alone. Land charges are not prescribed. Individual payments are prescribed. Hence 3. census is distinguished into real, personal, and mixed, according as it is immediately constituted in some fruitful thing, or in the labor and industry of a person, or in both, insofar as immediately and directly only the person is obliged, though for security some things of the debtor are obliged, yet when these perish, the person remains obliged. Therefore in a real census, the thing is obliged to whomever it may come, and, when the thing perishes, the census perishes, C. H. 1624, 1625; in a personal census the person is obliged, and, when the person's industry perishes, the census perishes, unless the census was constituted independently of any industry whatever, and only in the mere obligation of the person to pay. In a mixed census, when the person's industry perishes, the thing as though mortgaged is obliged, and, when the thing perishes, the person is still obliged. Cf. L. 841, 846, 847. 4.

Temporary, or perpetual, or for life, according as it is constituted for a time, e.g., for 10 years, or in perpetuity, or for the life of a man. C. I. 1779; C. G. 1910; C. A. 1284; C. H. 1802. 5. Redeemable or irredeemable, according as it can or cannot be redeemed through restitution of the capital or price. - C. B. 1105 ff.; 1199 ff.; Lugo d. 27, n. 4; E. M.

Resolutions: A censuary is not freed from paying the pension on account of accidental sterility of the land and loss of fruits. C. H. 1624. - Land subject to a census, coming into the hands of others, passes with its own real burden. Lugo, Resp. Mor., l. 6, d. 12.

Note: According to more recent laws, when revenue is the price of alienation or the condition of cession of immovables, whether under an onerous or gratuitous title, the revenue is called praedial or land revenue. Such a cession of immovables, however, transfers full ownership to the cessionary, notwithstanding any contrary clause. But revenue constituted by means of capital is called simple revenue or census. C. I. 1778, 1782; C. G. 530, 1909. Cf. C. A. 1125, 1147. - According to C. I. 1782, census properly so called is not permitted except by means of a special mortgage on a determined estate. That is to say, not every census is permitted, but a mixed or real census. Otherwise, the capital can be claimed back.

A perpetual or long-term census is numbered by Canon Law among immovable goods. Clem. Exivi de Verbor. signif.; Lugo n. 8. According to C. I. 418; C. G. 529, life or perpetual revenues which are owed by the State or by private persons are counted among movables.

Whether a reservative census is licit? - Resp. Affirmatively. The reason is that anyone selling or giving his own thing to another can reserve to himself a right to part of the fruits of that thing, provided nevertheless that, in proportion to the reservation, the price is diminished in a sale, and, in a donation, the census corresponds to the fruits of the estate. L. 839. According to C. L. 1707, a reservative census is prohibited.

Whether a real consignative census is licit? - Resp. Affirmatively. For anyone, by the admission of all, can give to another the right of receiving an annual pension from his own fruitful thing; therefore he can also sell this right. Nor does it matter that in the course of time the pensions to be received exceed the price paid; this also happens in the sale of a fruitful thing, and yet it is not illicit. Hence a real census is licit, whether perpetual or temporary. For if due equality is preserved between the price and the perpetual or temporary right of pension, no injustice indeed appears. That is had as a just price for which, in the place of the contract, censuses of this kind are customarily sold and bought. C. Regimini, l. 2, de Empt. et vend., Extr. comm.; L. 839; E. M.

Whether a personal consignative census is licit? - By natural law: "The first opinion denies it ... because a person cannot be sold.... The second opinion, more common and more probable, teaches that it is licit ... because if each person can hire out his services, he can also sell them. But in such a contract the person is not properly bought, but improperly; for properly the right over the industry of the person is bought." L. 840. By Canon Law, where this has force, this census is prohibited by the Bull of St. Pius V Cum onus, 1568. L. 840, 846, 848. "But the Bull of St. Pius V," says St. Alphonsus, 849, "has not been received in the two kingdoms of Sicily, nor has it been received in Spain, nor in Belgium, nor in Germany, nor in France, nor is it observed even at Rome." Cf. Collectan. S. C. de P. F. 2132. According to C. I. 1628; C. G. 1780, no one can oblige his services except for a time, or for a determined business. - Benedict XIV, de Syn., l. 10, c. 5.

Whether a life census is licit? Resp. Affirmatively. For it is an aleatory contract, in which both the censualist and the censuary expose themselves to equal risk: the former of receiving more or less, the latter of paying less or more. Moreover, civil law approves it both under an onerous title, for money, or for a movable thing, or for an immovable thing, and under the gratuitous title of a donation inter vivos or of a testament. C. I. 1789 ff.; C. G. 1910, 1968, 1969. That it is licit is also drawn from Canon Law, Clem. Monasteriorum de Reb. Eccl. non alien. But to establish the just price of a life census, if the question concerns a life census from an onerous title, account must be taken of age and health, as well as of the danger to which someone is exposed by his manner of living, art, or office. Ordinarily they say that 15 per 100 can be demanded. A life census is distinguished from an ordinary census in this: that in the latter, when the censualist has died, the right to the canon remains in the heir; but in the former no right to the canon remains after the censualist has died. L. 844; C. A. 1285; C. H. 1802, 1803.

A life census is null unless the one for whom it is stipulated is alive, C. I. 1795; C. G. 1974. And if he for whom the life census was stipulated dies immediately, according to C. I. the contract is not invalidated. According to C. G. 1975, it is otherwise if the person, when the contract was made, was suffering from that illness by which afterward he died within the space of twenty days.

According to C. G. 1976 and according to C. I., by whatever price it has been constituted, it is valid. According to C. B. 761, the contract of a life revenue cannot be valid unless it is established in writing. C. G. 1969; C. I. 1790: if a life census is constituted under a gratuitous title, by donation or testament, it must be made in legal form.

Whether a redeemable real census is licit? - Resp. Affirmatively by natural law, whether on the part of the censuary, or even on the part of the censualist. For in census there is a true sale, in which redemption is also licit on either side. - By Canon Law, according to the cited Bull of St. Pius V, it is always indeed permitted to the censuary that he be able to redeem the census, after giving notice for two months; but not to the censualist. According to C. I. 1783; C. H. 1608; C. L. 1648, census is redeemable by its essence; according to C. G. 1911, perpetual census is essentially redeemable. But the census cannot be redeemed by the censualist so long as the censuary observes the agreements. C. I. 1783, 1785 ff.; C. G. 530, 1911 ff. On the contrary, it can be redeemed by the censuary at any time. C. I. 1783; C. G. 530, 1911; and a pact that he cannot redeem the census is null. C. I. 1783; C. G. 530. Nevertheless it can be agreed that it not be redeemed as long as the censualist lives, or before a certain time which in reservative or land censuses cannot exceed thirty years, and in consignative censuses cannot exceed ten years, or only after the censualist has been forewarned beforehand at a legitimate time. C. I. 1783; C. G. 530, 1911. Cf. C. H. 1608, 1609, 1658, 1662; C. L. 1648.

But a life census is irredeemable, both on the part of the creditor, if the debtor has been in delay in paying, and on the part of the debtor, if by chance he has begun to be burdened by it beyond equity. Yet the creditor will be able to rescind the contract if the debtor has not furnished the promised securities for execution. C. I. 1785, 1796-1798; C. G. 1912, 1971, 1977, 1978, 1979. Cf. C. H. 1805; L. 843, 847.

Whether an irredeemable or perpetual real census is licit? - Resp. Affirmatively by natural law. For as a right of pension or revenue of this kind is acquired by a certain thing or sum of money, with which the seller will be able to trade, buy a field, a house, etc., and so gain profit indefinitely, so also those pensions or revenues are to be received indefinitely. And if due proportion of price is preserved in the contract, they can well be equivalent, as to the utility and emolument to be received therefrom, to the thing or sum of money handed over as the price. But in sale and purchase, equality must be preserved precisely in this, between the price and the merchandise, namely as to the utility and emolument to be received on each side, with attention to law, custom, and common estimation. Tambur., de Contr., tr. 2, c. 2, § 3, n. 3; Lugo d. 27, n. 20, 158. The S. C. de P. F., Feb. 20, 1819, Collect. n. 2129, declared licit a perpetual census irredeemable on the part of the buyer, but redeemable on the part of the seller.

Whether a redeemable personal census is licit? Resp. Affirmatively, whether on the part of the seller or on the part of the buyer. For as a real census rests upon a thing, so a personal census rests upon the industry of a person. But the industry of a person can be sold as a thing. Therefore, as a redeemable real census is licit, so also a redeemable personal census is licit, if due proportion is preserved for the burden imposed. - Benedict XIV, de Syn., l. 10, c. 5, n. 4, 5; L. 840, 843.

Whether it is licit to buy the right of an annual pension by the mere transfer of ownership of money, without that right being constituted in some fruitful movable or immovable thing, or in some determined industry of a person? - Resp. Affirmatively. It is established 1. from the almost universal practice of God-fearing men themselves. For annual pensions are everywhere bought with money, like other merchandise, whether for a time or for one's whole life, and no scruple is raised about this matter. 2. For a census of this kind, merely pecuniary, is a most true sale, which certainly is licit: for on one side that right of an annual pension is appreciable by a price; on the other side money, the ownership of which is transferred absolutely, and not with the burden of restoring the same amount as in mutuum, is truly the price of that right. C. I. 1778; C. G. 1909.

Note: This merely pecuniary census has this proper to itself, that it is constituted in no fruitful thing, but is a most true sale, and consequently, although the censuary loses the capital of money received, nevertheless he is always bound to pay the constituted census. The same would have place if someone, in place of money as the price of the right to that pension, were to hand over a movable or immovable thing, without consigning the right of that pension in it and attaching it to it. Such a contract, by its proper name in the new Law, is called the constitution of revenue. And indeed C. I. 1778 ff. and C. G. 530, 1909 ff., 1968 ff., seem to recognize not properly census, but this constitution of revenue. Annual revenues constituted in government securities can be brought back to censuses, namely when money is placed in public loans, in public debt; likewise monetary or banking, commercial, and industrial shares, whose sale and purchase is licit as that of other things; and the price, as of other merchandise, has increase and decrease from day to day. Hence it is licit to buy at the current price annual censuses constituted in the Government, or shares from a public banker. For they are sold and bought as ordinary merchandise, and their price increases or decreases according to the common estimation of men judging that there is greater or lesser danger in them.

What conditions are required for the licit constitution of census? - "By natural law only two conditions are desired: 1. That there be equality between the census and the price. 2. That pacts added beyond the nature of census be justly compensated." L. 845. By Canon Law several conditions are required, but by almost universal custom derogation has been made from them. L. 845-849. But we have already enumerated the principal dispositions of civil law. Since census is a true sale and purchase, those conditions and modifications can be added to the contract of census which are not repugnant to sale and purchase. The price likewise, as in buying and selling, can vary according to the various circumstances of things. Tambur., de Contr., tr. 2, c. 4, n. 1, 2; Lugo, Resp. Mor., l. 6, d. 15.

Whether a life census runs divisibly with time; or whether it is owed only after the constituted time, for example after a year has elapsed, so that, if the censualist dies beforehand, the censuary is not bound to pay the pension to the heirs in proportion to the elapsed time? Resp. Affirmatively. For a life census is for the food and pension of life; for one placing his money wishes to live from the pension. Therefore it is equitable that the pension run in proportion to the life which must be sustained, and is sustained from the day of the constituted census. Therefore the censualist dying has acquired a right to the pension for the preceding time; moreover the right then acquired by him, when he dies, passes to the heirs. Wherefore a pension also assigned to a cleric, for food and the sustenance of life, although it is personal for sustenance and is ended by the death of the pensioner, is owed to the heir, when the pensioner has died, in proportion to the elapsed time. - La Croix 1023; Gur. Cas. 1005. According to C. I. 481; C. G. 586, civil fruits accrue day by day. Cf. C. B. 101. According to C. I. 1799; C. G. 1980, in a life census, pensions accrue day by day; but if it has been agreed that they be furnished in advance at the beginning of each year or month, once that time comes, the whole of the entire year or month is immediately owed. Likewise according to C. I. 482, 867, the usufruct of a life revenue gives the usufructuary the right of demanding pensions from day to day, and a legacy under the title of food can be demanded from the beginning. According to C. A. 1285.

1418, a life revenue, in doubt, is paid in advance each quarter; but food payments are furnished in advance at least by the month. According to C. B., a life revenue must be paid in advance each quarter, and the right to the whole revenue remains, even if at the beginning of the quarter he to whom the revenue is owed dies. According to C. H., the revenue corresponding to the year in which he who enjoys the life revenue dies is to be paid in proportion to the days which he lived, and, if it was to be paid in advance, the whole is owed. Cf. art. 880. According to the Constitution of St. Pius V Cum onus, § 3, Feb. 16, 1569, "payments which they commonly call anticipated" are prohibited from being made or brought into pact.

How is census extinguished and rescinded? Census is extinguished: 1. By redemption on the part of the censuary, C. I. 1783; C. G. 1911; and, if it is for life, by the death of him for whose life it was constituted, C. I. 1801; C. G. 1982; C. A. 1285. 2. By the office of the judge, in cases determined by law, C. I. 1785, 1786; C. G. 1912, 1913; C. L. 1649. - A reservative census can be rescinded, like any other sale and purchase, e.g., if the censualist, as seller, has been injured beyond half of the just price; or if, as donor, he afterward has children.

A census can also be rescinded if the censuary has ceded his goods, or has ceased to be solvent. But where the debtor, before he cedes his goods or ceases to be solvent, has alienated the land, the creditor cannot demand redemption of the census if the possessor of the land is prepared to pay the canon and give securities for it. C. I. 1786. Cf. C. G. 1913. When a census has been dissolved because the conditions were not fulfilled, or rescinded because children have been had, rights acquired by a third party over immovable goods remain intact, just as in sale and exchange. C. I. 1787. Census is not extinguished by the civil death of the censualist, but passes to his heirs until his natural death, C. I. 1801; C. G. 1982, 1983.