Chapter II — The lax opinions of several Casuists

I. Fr. Thomas Tamburini, Method of Confession, Book III, chap. 4, no. 5: “If the confessor foresees that the penitent will not make restitution should the nullity of the title which the penitent supposes himself to possess be disclosed to him, such nullity is not to be made plain to him by the confessor, even though this be to the prejudice of a third party who will thereby go without what is his.” How ruinous this principle is to justice, to trade, and to human society, let every man judge.

II. Fr. Dominic Viva, question 1, article 5, no. 2: “If from a probable opinion the penitent judges that here and now he is not bound, the confessor ought to accommodate himself to the penitent's opinion, provided that opinion be truly probable, even though he himself follow the contrary judgment. The reason is that when the penitent is duly disposed, he ought to be absolved. But he is duly disposed if he follows a probable opinion, namely that he is not bound to restore. Therefore he ought then to be absolved.”

III. Tamburini, Method of Confession, Book III, chap. 4, no. 5: “If you foresee that the penitent will not make restitution, although you likewise observe that this is to the public detriment, why should you be obliged to admonish him, seeing that you foresee that even with your admonition added he will not make restitution, and consequently that the public loss will not be removed? Assuredly such an admonition will be in vain — nay, harmful to the man admonished, and in no way favourable to the public good. … And all this proceeds also on the principles of de Lugo, when the confessor should hope that the penitent would indeed receive the admonition, but nevertheless perceives that the remedy is exceedingly difficult. Whence it is also inferred that the same must be said when the penitent is bound under mortal sin to something so difficult that he is not believed likely to receive it with an even mind at the time, but is judged likely to receive it better on another occasion: for then a prudent confessor will be able to leave him in his own good faith, which excuses him from sin, and to defer the admonition to a more opportune time, lest the penitent, being terrified, abstain from confession and suffer a greater harm. And let this be noted above all for the confessors of merchants and of princes.”

IV. Leonard Lessius, On Justice, Book II, chap. 14, doubt 8, no. 51: “And although the evil work for which he gave is not appraisable at a price inasmuch as it is evil, nevertheless inasmuch as it is delightful or useful to the one and detrimental, dangerous, or laborious to the other, it is appraised at a price among men: therefore what has been received on this account is not to be restored, unless perhaps someone exceed the valuation; as if a harlot, who is accustomed to grant the use of herself for one gold piece, should extort fifty from some young man as the price. This, however, has no place in her who is reckoned honourable; as if some matron or daughter should accept a hundred gold pieces for the use of her body from one who was able to give them, for he who was able to give could also retain: FOR SHE CAN VALUE HER OWN CHASTITY AT SO MUCH THE MORE. For things which have no fixed price, and are not necessary to life, but are sought for the sake of pleasure, can be appraised at the seller's discretion, and, as Peter Navarra probably teaches, at others' too.”

V. The same Lessius, in the place cited, no. 48: “You will say: St. Augustine, Epistle 54 to Macedonius, says that it is more wicked to accept money for an unjust sentence than for a just one, for false testimony than for true. But money accepted for a just sentence is to be restored: therefore also for an unjust one. So Soto. — I answer by denying the consequence. For it is not the case that, because a thing is more wicked, it therefore obliges more, or equally, to restitution. For this obligation does not follow the magnitude of the crime, but the loss inflicted by the injury. But he who accepts money for an unjust sentence inflicts no injury upon the giver, as does he who accepts for a just one. Now the former is more wicked than the latter: both because it is worse to pass an unjust sentence (to the passing of which he who accepts the money has already set his mind) on account of the injury which is thereby done to the other party, than to accept money for a just sentence to be passed; and because (as Augustine there says) it is more wickedly given for an unjust sentence than for a just one, although it be given voluntarily and willingly. For he is speaking of a sentence to be passed. Add that Augustine in the same place signifies that this money, though more wickedly accepted, is not to be restored once the work has been performed, since he says it was given by the willing. For to one who is willing no injury is done. It is otherwise if it be given for a just sentence, which is reckoned to be given under compulsion, from fear of an unjust sentence.”

VI. Fr. Lessius, Book II, chap. 19, doubt 3, no. 21: “Thirdly, if an heir ab intestato should retain the inheritance and the legacies, those to whom something had been left by such a testament may use occult compensation: for in truth the thing was theirs.” So Sylvester, under the word Inheritance.

VII. Fr. Dominic Viva, Course of Theology, Vol. I, part 3, question 4, article 5, no. 12: “Thirdly, many teach with Lessius, chap. 19, doubt 5, Molina, Granados, and others, that he who ought to have a legacy under a testament less than solemn may retain it for himself, or make compensation, on the ground that it is a probable opinion that by the law of nature such a testament is valid, and that consequently in the forum of conscience the legacies made in it are owed — although the contrary opinion be common enough and probable. Fourthly, Lessius teaches in the same place that an heir ab intestato may use occult compensation against him who possesses the goods of the deceased under a testament less than solemn: because it is a probable opinion that the goods are owed to the heir ab intestato, to which opinion he may conform himself.”

VIII. Fr. Lessius, in the place cited, no. 50: “Thirdly, the heir ab intestato may retain it; and if another possesses it, he may sue for it at law. Fourthly, that if he cannot do so because of the power of his adversary, he may use occult compensation.”

IX. Fr. Antonino Diana, Vol. VI, tract 3, resolution 149: “He who ought to have a legacy under a testament less than solemn, since it is a probable opinion that those legacies are owed in the forum of conscience — although the contrary be common enough and probable — may nevertheless retain the legacy, or receive it anew, or make occult compensation, as Granado and Molina admit. Lessius adds that the heir ab intestato may also use occult compensation against him who possesses the goods of the deceased under a testament less than solemn, because the contrary opinion also is probable, to which he may conform himself.”

X. Fr. Diana, in the place cited: “Whether in occult compensation the debt to be made good must be liquid and certain? Upon this the most eminent Cardinal de Lugo treats this question at large, Vol. I, On Justice, disputation 16, section 5, from no. 94 to no. 107, and endeavours to establish the negative opinion, with the distinctions adduced by him, forcibly and learnedly, as he always does. He asserts therefore that when an equally probable, or a more probable, opinion favours the creditor who wishes to make compensation — an opinion which turns not upon the fact but upon the right — it seems probable that the creditor may, before the matter be brought to judgment, the other conditions required above for lawful compensation being posited, secretly compensate himself for his debt. This conclusion seems to be proved by the arguments made above and the examples adduced above, in which examples the authors themselves admit compensation, although in them there proceeds only a probable opinion, as in the compensation of money for reputation taken away, and in the legatee, or the heir under a testament less than solemn, and the like. For the reason adduced above seems to prove this: because in the aforesaid case, notwithstanding the debtor's possession, the judge would pronounce sentence, or at any rate could pronounce it, for the creditor, embracing the probable, or the more probable, opinion which favours him. Likewise, when he brings forward on his own side good and qualified Doctors, who hold that in such circumstances the law favours him, and that the defendant ought to be condemned, he has already shown that, according to the judgment of those Doctors, his cause is not equal but better than the cause of the defendant. Why then shall not the creditor himself, when without grave inconvenience he cannot have recourse to a judge, be able to embrace the same opinion which the judge ought or could have embraced, and compensate himself for his debt?”

XI. Fr. Diana, in the place cited: “Nor is it an objection that it seems iniquitous to compensate a certain debt with an uncertain one: for he who has only probability that Peter owes him something, to whom he himself owes with certainty just so much, if he uses compensation, seems already to compensate a certain debt with an uncertain one, and thus to extinguish an uncertain debt by a certain payment. It is answered that this same argument, if it proves anything, proves not only against compensation but also against payment, namely, that one who has only a probable right to sue for a thing owed him could neither sue for nor receive it from the debtor: because it would then likewise be iniquitous to sue for a certain and entire payment, and a certain thing, for an uncertain debt. Whence it would never be lawful even in court to plead except with an evident right. As therefore it is lawful to sue for a probable debt, and to receive it from a debtor who pays; so it will be lawful, in that proximate probability of which we have spoken, to make compensation, and to receive the certain thing. For the reason in both cases is the same: namely, that those probable reasons, and the authority of the Doctors, and that opinion, although in itself it be probable, nevertheless do not have for their object a probability, but a certain payment or compensation. For it does not say that a probable payment or compensation ought or may be made; but it says probably that a certain payment or compensation ought or may be made — which suffices for suing for it, or for making it, as in other matters. For thus a probable opinion concerning fasting, or concerning the recitation of the Office, brings it about that you may take food not probable but certain, and may set down a certain omission of the divine Office. And the reason arises from the principle laid down above, that for a lawful operation proximate probability suffices, by which you probably judge that it is lawful to act in such a manner. Since therefore you have a proximate probability by which you probably judge that you have here and now a right to so great a sum of money, you will be able to take the whole of it: because there cannot be a right to take it, unless there be a right to take it with certainty. — And all these things, and many others, the most eminent Cardinal de Lugo adduces in the place above cited for the confirming of this opinion; although afterwards, at the end of no. 106, he abstains from a final judgment upon it.”

XII. The Fathers of Salamanca, tract 13, chap. 1, doubt 13, no. 318: “Whether one who has an opinion that a thing is owed him may use occult compensation?” They answer, no. 319: “It must be said therefore that in general and in the abstract, so to speak — that is, for all cases — it is not lawful to use occult compensation when there is given only a probable opinion for either side, that is, for the debtor and for the creditor; but in particular cases it is lawful. And it is also lawful in all cases, when there is given a greater probability on the creditor's side that such a debt is owed him.”

XIII. The Fathers of Salamanca, in the place cited, no. 320: “But behold a difficult objection: for if in this particular case A, and in that other B, such compensation is lawful, therefore in all it will be lawful: because from particulars to the universal the argument holds good by induction. — By this objection (in my judgment) it is rightly proved that, speaking by intrinsic principles, either it must be said that in all cases in which there is given a probability of fact that the thing is owed, compensation is lawful, and thus that a probability of right, and a proximate one, is given; or it must be denied in the particular cases: and thus the most eminent Cardinal de Lugo rightly said that authors proceed inconstantly and inconsequently. … I confess that I do not grasp the disputant. But I do not deny that among men so learned there are some special reasons by which they were moved to assert this in one case and not in another; and that what is hidden from me is plain to them: and therefore I assert that, by an extrinsic probability drawn from the probability of the Doctors, it is lawful in those cases in which there are given classic authors sufficient to produce a probable opinion, to use compensation with a probability of the debt.”

XIV. Whether one who has bound himself under oath to the payment of a debt may use compensation, and not pay the debt.

Fr. Diana, Vol. VI, tract 3, resolution 151, says: “The case is an everyday one, and I find three opinions concerning it. The first denies. … The second opinion affirms, and therefore asserts that one who has sworn to pay money may compensate without fear of perjury. … The third opinion distinguishes. … What I myself think I will say briefly. I judge all these three opinions probable. But I adhere to the second as the more probable.”

XV. Cardinal de Lugo, Vol. On Justice and Right, disputation 4, no. 117, embraces the third opinion with this distinction. If you promised not to use compensation, adding an oath to pay the debt, you cannot use compensation; but if you swore absolutely that you would pay the debt, you will be able to use compensation. Because, he says, although an oath added to a promise introduces a new bond of obligation, “nevertheless it does not oblige to another and new object. For it only confirms the promise; therefore it obliges only to that which was the object of the promise. But the promise to pay does not exclude compensation. For he who compensates truly pays.”

XVI. Whether one may use present compensation for a future debt?

Cardinal de Lugo, in the place cited, section 3, no. 93, answers: “Sometimes, however, it is lawful for a creditor to anticipate, and to compensate himself now for that which Peter does not yet owe but will owe after a month, for example; and if the creditor prudently fears that it will not be paid him, Tanner affirms it, 2-2, disputation 4, question 6, doubt 14, no. 406; Diana, resolution 48. Yet whatever be the case in the external forum, in which the law seems to proceed otherwise, in the internal forum the opinion of the said Doctors seems probable, that the creditor may compensate himself before the time for a future debt, upon a twofold warning.”

XVII. Fr. Diana, Vol. VI, tract 3, resolution 150, no. 5, confirms the opinion recounted above, which he had earlier taught, and in these words: This I formerly taught; and most recently, citing me, the most eminent de Lugo teaches it, and also, citing me, Machado.

XVIII. Whether one who by occult compensation filches what is owed him may swear that he has received nothing?

Fr. Thomas Tamburini, Book VIII, tract 2, chap. 4, § 1, no. 1, answers: “That he is not a thief in conscience, nor does he sin, nor does he incur the excommunication which perchance is imposed against thieves; and that he may swear even before a judge that he has received nothing, understanding that which was not owed him (if it be already certain to him, as today it is among all); even if the thing which he takes had been consigned to him by the debtor on deposit. See Molina, Lessius, de Lugo, and others soon to be cited, to whom add Dicastillo.”

XIX. Fr. Diego de la Fuente Hurtado, disputation 25, chap. 1, no. 5: “All these things show how confusedly and indigestedly that proposition (namely the 57th, condemned by Innocent XI) had been handed down, comprehending so many diverse cases under one rule, when they are very unlike; and with how many additions, limitations, and props it needs to be shored up, that it may be safely brought back to practice.”

XX. Fr. Dominic Viva, in his Tract on Theology, upon this proposition 57, no. 7: “What is proscribed in this thesis is that servants may secretly compensate themselves for what they judge to be owed them in justice by way of wages. Therefore for the making of this occult compensation there is required the judgment of a man learned and at the same time expert.”

XXI. The Fathers of Salamanca, tract 13, chap. 1, doubt 19, § 2, no. 416: “Likewise, if a master employs a servant either at other hours, or in other services than was agreed, the servant may use compensation, if he cannot obtain it from the master.”

XXII. Fr. Patrick Sporer, Vol. II, tract 5, on the 7th precept of the Decalogue, chap. 5, sect. 2, § 4, no. 83: “A servant or official who through error, necessity, or some like cause has hired out his labour for less than the just price, since he was at least in some respect unwilling, and so had not the mind to make a gift, will be able both to exact the deficiency of his wage by right, and, if he cannot obtain it otherwise, to compensate himself secretly. And let the master lay the blame on himself.”

XXIII. Lessius, cited in Matthew de Moya, Vol. I, Select Questions, tract 6, Miscellany, disputation 4, question 3: “When a servant asks nothing by way of wage — nay, expressly rejects in his heart every intention of asking — and serves in the hope that some office or benefice will be procured for him by his master: when the master has procured it for him, even if he has obtained nothing, he cannot ask for anything, nor compensate himself. But if the master has procured nothing, because for the sake of avoiding the stain of simony he was unwilling to procure it, or for other causes, he will be able to ask for the wage customary after the manner of the country; and if the master does not give it, he may lawfully provide for himself by compensation. So Lessius, chap. 24, doubt 4, no. 26, near the end. … The second part is proved: because although he had the internal intention of asking nothing, nevertheless, since that intention is not a vow, by it he did not take away from himself the power of acquiring that to which he has a right.”

XXIV. Whether in debts of justice there can be given compensation by a gift or by gratuitous service?

Fr. Diana, Vol. VI, tract 3, resolution 152, answers in the affirmative. “When I willed by a gratuitous gift to satisfy obligations of justice which I knew myself to owe — but the difficulty is, whether, when I furnished the gift or the service in ignorance of the debt of justice, I may then make compensation? And he judges the affirmative opinion to be probable, on the authority of Rodriguez and Aegidius Trullench, On the Decalogue, Vol. II, Book 7, chap. 4, doubt 5, where he asserts thus: I owe you a hundred gold pieces in justice, and afterwards I gratuitously render a service of the same value, or confer upon you an equivalent under the title of donation: shall I remain exempt from the obligation of justice? I answer: if, when I conferred that gift, I was mindful of the obligation of justice, and did not will by that thing or gift to satisfy the obligation of justice, but to render that thing gratuitously, it is certain that I have not satisfied the obligation of justice, nor can I afterwards use compensation, because that thing was knowingly given gratuitously and liberally. … What if, when he conferred the service, he was ignorant of the debt of justice? Rodriguez, in his Summa, part 2, chap. 49, conclusion 2, asserts not improbably that afterwards, when he remembers the debt of justice, he may make compensation by that thing given under such ignorance: because it is presumed that he would not have been so liberal, had he been mindful of the debt. But Sánchez, Book 1 of his Moral Works, chap. 13, no. 1, with other probable authors, judges the contrary. … Nevertheless, as I have said, the opinion of Rodriguez is not improbable, and Layman, cited by us, favours it.” Thus far Trullench.

XXV. Whether compensation is valid in the forum of conscience, even though there be prior creditors?

Fr. Diana answers in the place cited, resolution 153: “This case is much in practice, and it happened in these past days upon the death of a certain banker: then many learned men answered in the negative, because the debtor in such a case receives a thing obligated to another; and so the Doctors commonly teach. But I judge the contrary opinion probable. What if the creditor should possess the debtor's property by right of deposit? I think probably, with Tanner … who cites Navarrus and Lessius, that that law (of deposit) otherwise regards only the external forum, or at any rate is to be understood as holding if the compensation can be obtained otherwise. Whence in our case not only would the creditor justly make compensation, prior creditors existing, as has been said, but also, against Comitolus, he would lawfully possess the thing by right of deposit.”

XXVI. Fr. Dominic Viva, Vol. I, part 3, question 6, no. 9: “It follows in the fourth place that a priest who has celebrated ten Masses for money lent, if he cannot recover this money, may, when ten carolins are afterwards offered him for another ten Masses, retain this money and not celebrate the other Masses, as Pejerinus notes in Tamburini, Book 5, On the Sacrifice of the Mass, chap. 1, § 3 — provided nevertheless that he avoid the loss of a third party, namely either of a soul in purgatory, or of a sick man, etc.”

XXVII. Fr. Diego Hurtado de la Fuente, Reformed Theology, dissertation 13, chap. 5, no. 41: “Now what we have said of servants we extend to any other stipendiaries whatsoever, proportion being observed; and they have place in priests who celebrate Masses: for they too labour in the vineyard of the Lord, like other labourers, and are worthy of their hire. Wherefore, if the just hire, fixed by law, custom, or agreement, be not paid them in full, they will by the best right be able to compensate themselves, and secretly to take for themselves what is lacking to the just wage out of other moneys of him who commended the Masses to them, those things being observed which in such compensations ought to be observed by others.”

XXVIII. The same Fr. Diego, in the same place, no. 43: “A grave difficulty, however, arises: namely, whether that priest to whom recompense was owed in justice, and the supplement of a scanty stipend, may keep himself indemnified by not offering as many Masses as he promised to the iniquitous contracting party, but fewer — only those which, the diminished stipends being taken together, correspond to a just stipend? … (After many things which for brevity's sake are omitted, he answers:) Just as other labourers unjustly injured in a contract of hire as regards the justice of the wage can provide for themselves in two ways, when other means are lacking — namely, either by exhibiting the whole labour promised, worthy of a greater stipend, and taking to themselves secretly what is lacking to the just stipend, at least up to the lowest degree; or rather by diminishing their labours, and rendering only those to which the stipend that is given corresponds in equality — so likewise it will be lawful for this priest, similarly injured unjustly as regards the stipend of Masses, to provide for himself by either of the aforesaid means: for neither is unjust, etc. … No. 45: The decrees of the Sacred Congregation, however, made by the special authority of Urban VIII, cause trouble … It may nevertheless be answered that the decree does not touch our case.” See there many things of the laxest kind.

XXIX. Fr. Leonard Lessius, Book II, chap. 2, doubt 22, no. 135: “If you have unjustly defamed another who had previously defamed you, you are not bound to restitution towards him, if he is unwilling to make restitution to you; but you may use compensation, equality nevertheless being preserved as far as may be.”

XXX. The same Lessius, in the place cited, no. 136, to the question whether defamation may be compensated by the occult retention or filching of money, answers: “It is probable that this compensation may be made: because that opinion is probable which asserts that defamation is to be compensated with money, when it is not restored in its own kind.”

XXXI. Fr. Luis de Molina, On Justice and Right, Vol. IV, disputation 49, no. 5: “When one has unjustly defamed another, and is unwilling, as he was bound, to restore that reputation to him, then the man unjustly defamed, who had not inflicted a loss of reputation upon the other, could compensate in money the loss of reputation in which he stands; and that not only by not paying an old and occult debt, so far as would be judged sufficient in equality for a competent compensation of the reputation in which he stands, but also by secretly taking from what belongs to the other as much as would be enough for the same compensation: provided that no scandal intervene, and that he could not otherwise conveniently obtain the restitution of his reputation; and lastly provided that all the conditions required intervene, that occult compensation of a debt may lawfully be made in the forum of conscience.”

XXXII. Fr. Dominic Viva, Vol. I, part 3, question 7, article 1, no. 2: “He who is assaulted by an open enemy, whether with arms or with insults, and can flee and decline the evil, yet does not flee, but defends himself with due moderation, is not bound to restitution. The reason is: because although he sometimes sins against charity by not fleeing, if indeed he could flee without loss of honour, yet he does not sin against justice. Therefore he is not bound to restitution.”

XXXIII. The Fathers of Salamanca, tract 14, chap. 1, point 6, no. 52: “Since therefore both the said opinions are probable, he who should wish to follow the first will be able, if he be instituted heir or legatee of a testament less than solemn, to procure the inheritance or the legacy, and if he obtain it, to retain it; and the same holds of other contracts. And according to our opinion the heir ab intestato will be able not to give up the inheritance or legacy of a testament less than solemn: because according to that opinion the testament remains invalid even in the forum of conscience; and therefore the heir ab intestato succeeds as if it had not been made. But because we have called this opinion the more probable, the said heir will be able to use occult compensation, if the legatee or the constituted heir shall by any way have entered upon the legacy or the inheritance: because, as we said (tract 13, chap. 1, point 19, § 3), place is given to compensation when there is the more probable opinion that such goods are owed to oneself. But the heir or legatee will not be able to do this, if the heir ab intestato be unwilling to render what is rendered in the testament less than solemn, even though he should wish to conform himself to another's opinion, unless he judge it the more probable: because from the fact that it is probable that something is owed, place is not given to compensation, as we proved in the same place, § 5, no. 319. But that it may be done on both sides by following an opinion merely as probable, Villalobos and Lessius hold.”

XXXIV. Fr. Dominic Viva, Vol. I, part 4, question 1, article 1: “Wherefore it is lawful to sell dice and knucklebones, although I observe that the buyers will make ill use of them; and it is lawful also to sell a lamb to Jews, and flowers, and to sell paints and ornaments to harlots, and food to those whom I know will violate the fast.”

XXXV. Whether a probable opinion is matter for sale. Fr. Thomas Tamburini, Book VIII, On the Decalogue, chap. 7, § 3, no. 13, proposes this question under this title: The sale of a probable opinion; and sets it forth in these words: “There occurs here a difficulty not unlike that concerning a judge. Let us suppose that opinion to be probable of which I have spoken at large in Book I, chap. 3, which, besides those cited there, Dicastillo follows, Book II On Justice, no. 5, disputation 5, doubt 7: that it is lawful for a judge to choose one of two equally probable opinions, and to pronounce sentence according to it. Now I ask, will a judge lawfully and justly accept money, that he may rather choose the one which favours me than the one which favours my adversary? (He answers that he disapproves this opinion; but he adds:) Let him nevertheless read it who will, in Lessius, Book II, chap. 14, doubt 9, no. 64; Valentia, 2-2, disputation 5, question 6, article 4, part 4; Salón, 2-2, question 61, article 4, conclusion 2.”

XXXVI. Fr. Leonard Lessius, Book II, chap. 14, doubt 9, no. 64: “If he (the judge) accept something, that he may follow this opinion rather than that in judging, he seems not to sin. … Because he is not bound to determine himself to the one or the other; but it is free to him to follow whichever he prefers. Therefore if he accept something that he may follow this rather than that, he does no injury to anyone. The consequence is plain. Because, since the thing is not owed, it is not against justice (if we regard the law of nature alone) to exact a price for it, and otherwise it is appraisable at a price. Thirdly: because he does not accept a price for the justice of the sentence, but because in this cause he prefers this opinion to that, to which he was in no way bound. Now this is appraisable at a price: both because it is most useful to the party, and because by following this opinion he loses the favour of the other party, whom he could have gratified.” Thus indeed he teaches, regarding the law of nature alone.

XXXVII. Cardinal de Lugo, Vol. I On Justice, disputation 26, section 11, no. 108: “It is inferred thirdly, that neither is this contract (the Mohatra) rendered unjust from the nature of the thing by this, that the seller manifests his intention to the buyer, saying: I freely sell you these wares on credit; but if you should wish afterwards to sell them at a lower price in order to have ready money, I am prepared to buy them.”

XXXVIII. Fr. Lessius, Book II, chap. 21, doubt 16, no. 131: “Observe nevertheless that this manner of contracting is often not free from fault in a merchant who by arrangement so sells that he may buy back at the lowest price. For first, he can sin against charity: as if he compel some wretched man to buy wares of which he has no need, to that man's great cost, when he could easily and without inconvenience to himself lend him money. Secondly, he can sin by giving bad example. For that contract has the appearance of evil and the suspicion of usury. Thirdly, by defaming himself and his own. He is nevertheless not bound to restitution, as Navarrus says: which understand of not being bound in justice.”

XXXIX. The Fathers of Salamanca, tract 14, chap. 2, point 9, § 1, no. 84, ask whether sellers and buyers sin against justice while they deceive one another with lies and perjuries, in order that the price may be increased or diminished within the appointed degrees. They deny it: because these, they say, are the common lies of sellers and buyers, and men commonly know that these are the stratagems of traders, to whom they give no credence; and if they incautiously give them credence, let them impute it to themselves, since they are easy of belief.

XL. Caramuel, Book II of his Moral Theology, disputation 14, no. 778: “I distinguish the troublesome from danger, or from emerging loss, and from ceasing gain. Is there not truly some recreation in seeing precious things — why not also in possessing them? A price is given for hearing a comedy or seeing a beast, and no one contradicts: why not for seeing or possessing the best pieces of gold? By reason therefore of this trouble, arising from the want of money, every other danger being set aside, Medina affirms that something above the principal may be received; and the interpreters of St. Thomas, question 78, article 1, indicate that it is speculatively probable. But Dicastillo contradicts, and says: to me this opinion is speculatively improbable, and morally pernicious in practice … He nevertheless contradicts himself at no. 154. One thing alone remains, he says, truly difficult, namely the sadness arising from the want of the thing which he loved and in which he delighted when he had it. It is not upon this that we dispute … And he answers: Some more recent authors teach that this sadness is sufficiently recompensed by the recompense of a thing of like condition. … But in very truth that want does not seem to be recompensed by the rendering of a like thing; rather, from the payment of the thing lent there returns again the delight which he would have had, if he had not lent, and thus he would have that of which he was deprived; and so he would not now have it. Therefore it is not enough that past sadness be recompensed by present gladness: because he would have had this also, if he had not lent. Therefore I prove that in this case something beyond the principal may be received, if from the beginning he brought it into the agreement and declared it to the borrower, according to what has been said above. … (Thus far Dicastillo: Caramuel in this fashion resumes the discourse.) The mountains are in labour, and a ridiculous mouse is born. Why were those things said before? An opinion which a little while ago was pronounced improbable and pernicious in practice is now at last asserted to be true. For truth is truth, though, prepossessed with other notions, you condemn it; and while you condemn it, it shines forth, and you will defend its sincerity against your very self.”

XLI. Fr. Claude La Croix, Book III, part 2, On Usury, no. 854: “Sylvius, Serra, and others in Mendo, In the Balance, disputation 6, article 1, no. 54, have taught that there is always a danger to the principal when a loan is given, and that therefore something can always be exacted by reason of the danger.”

XLII. Fr. Thomas Tamburini, Book VIII, tract 3, chap. 8, § 4, no. 1: “When there is reasonably feared a danger, or difficulty, or expense in recovering the loan, and these arise by reason of the person of the borrower, something proportionate above the principal may be exacted; if the dangers be feared from mere pusillanimity, most authors deny it. … But de Lugo intimates that it can be done, though he leaves it at last to the judgment of others. The reason is … the anguish and trouble which the lender is to suffer, for a whole year, say, on account of the fear of losing the principal, and which he is not bound to undergo without a price. And these things are already present in that small matter, etc.”

XLIII. Cardinal de Lugo, Vol. I On Justice, disputation 25, section 6, no. 81: “But since this comes about, that the danger itself is a loss distinct from the principal, and for which something may be exacted by a preceding agreement — for it cannot be denied that, although the debt be afterwards recovered, nevertheless that danger and the fear of losing the principal has brought trouble to the lender. As therefore a loan cannot be given without labour of body or of mind, or trouble, or fear of losing the principal, you will be able to receive something for this trouble to be undergone. … And this is proved a priori, because labour and grief of mind, although they be not in the class of goods of fortune, and therefore injuries inflicted concerning them do not of themselves oblige to compensation in money, are nevertheless something which can be brought into an agreement, so as to be compensated with money. For just as you can exact a price for bodily labour, so also for labour of mind: as you can exact a price that some pain of the head be yours, inasmuch as the trouble of that pain can be appraised; so for trouble and anguish of mind to be undergone you will be able to exact a price, since it torments not less, but sometimes more, than bodily pain. If therefore you could exact beyond the principal when the future loan would be to you a cause of headache, you will be able to exact also when the future loan would be to you a cause of grief and internal fear on account of the danger of losing the principal: because that grief and fear, as contradistinguished from the principal itself, is something which can be brought into an agreement for a price.”

XLIV. The same de Lugo, in the place cited, no. 83: “Since the reason for lawfully exacting something on account of danger is that the lender cannot here and now lend without undergoing that trouble and fear, it seems to matter nothing whether the thing itself, or the disposition and character of the lender, bring such trouble. For if I, for example, am lame, and must undergo a peculiar trouble in bringing the money from my house to the place of lending — a trouble which others would not undergo — I can well exact a peculiar price (N.B.) for that trouble to be undergone by me. If therefore likewise, because I am timorous and fearful, I cannot lend to you without great anguish and fear of losing the principal …” “… it seems that I may exact something for this trouble, without which I cannot lend to you. This, however, I leave to another's judgment.”

XLV. Fr. Thomas Tamburini, Book VIII, On the Decalogue, tract 3, § 5, no. 18: “I have already said that under this title of a promise not to demand back the money lent, it is lawful in this money-getting age of ours to exact five per hundred for any year whatever. So Caramuel.”

XLVI. Fr. Leonard Lessius, Book II, chap. 20, doubt 10, no. 74: “Observe nevertheless that if in truth from a loan of a hundred gold pieces you are certainly about to receive a detriment of ten gold pieces, it will not be the sin of usury, even if, without the borrower being warned of this loss, you should bargain for a hundred and ten to be repaid you.”

XLVII. The same Lessius, in the place cited, no. 90: “The third mode is this. If I had destined money for trade, and they should ask a loan: concerning which mode there is difficulty. For certain most learned men think that even then something may be exacted by reason of ceasing gain.” (After five reasons adduced in support of this opinion, he thus concludes at no. 95:) “For these reasons this opinion once seemed to me probable, and even now seems so, especially considered speculatively, provided that he exact no more than that hope of gain was worth, the estimation of labours and expenses being deducted; and provided that he always retain the intention of trading, if the loan were not sought. In practice, however, on account of the danger of palliating usuries, it is not easily to be admitted.” The same opinion is taught by Fr. Tamburini, Book IX, chap. 5, § 4, no. 2; Layman, Book III, tract 4, chap. 16, no. 8; Sporer, tract 6, on the 7th precept, chap. 4, sect. 2, no. 44.

XLVIII. Fr. Thomas Tamburini, Book IX, tract 1, chap. 5, § 4, no. 2: “If you have at home other money lying idle, but this which you lend you had destined for trade, you may still, if you lend this destined money, exact ceasing gain: because in truth by reason of the loan the gain ceases for you — such gain, namely, as would have come from this destined money.” The same he defends in Book VIII, chap. 8, § 3, no. 2, where he cites for himself Aragón and Valentia, Vol. III, disputation 5, question 20, part 1. Because, he says, this was the fruitful money for you, and not the other. These same words of Tamburini are transcribed by Patrick Sporer, tract 6, on the 7th precept, chap. 4, sect. 2, § 3, no. 44, where he cites Molina, Lessius, Layman, and de Lugo.

XLIX. Fr. Claude La Croix, part 2, book 3, no. 861: “If anyone dare not lay out the other money which he has, but even out of excessive solicitude reserves it for his family, he will be able to ask ceasing gain for the money lent, because the borrower was in very fact the cause of the ceasing gain: Molina, Pirhing, de Lugo, disputation 25, no. 90. But if for that precise reason he reserved the other money, unwilling to expose it to trade, that he might always have it at hand for the case in which someone should ask a loan, Molina, Layman, de Lugo, Tamburini, Hannold, Illsung (no. 458) teach that he can equally ask ceasing gain: because the loan, partly past and partly future, seems to have been the cause; and the presumed will even of those who are about to ask a loan moves him not to expose his money to trade, from which fact the gain ceases.”

L. De Lugo, disputation 25, section 6, no. 91: “Concerning the same condition it is asked, secondly, whether gain is said to cease by reason of the loan, so that something may be exacted for it from the borrower, when someone keeps some money by him which he was therefore unwilling to apply to trade, that he might have money at hand for those who should ask a loan. … And Lessius, no. 88 and following, divides this case into two others. The first is when I know that you will afterwards ask a loan, and for your sake I withdraw some money from trade, that I may be able afterwards to lend it to you: in which case he says that something may be exacted beyond the principal. The second case is when you do not know of anyone in particular who will ask a loan; but because many will afterwards be in need, you withdraw money from trade, that you may be able to lend to them, whoever they be: in which case he says it seems probable that ceasing gain may afterwards be exacted, especially speaking speculatively, if the intention of trading be retained, if that money were not given on loan, etc.”

“For clarity's sake we may subdivide the first case into two others. … After many things he answers at no. 93: Whence, to the ground of doubting, we can say that even then the loan is the cause of the ceasing gain, which can be explained in two ways. First, in the class of final cause: for therefore in your manner you cease from present gain, that you may afterwards be able to lend to me. Nor does it seem to be required that the loan be the efficient cause, and antecedent in priority to that cessation of gain; but it seems to suffice that it be the cause in the class of final cause of ceasing from gain: just as also our salvation and justification is called the cause of the Passion of Christ, because it was the end for the sake of which Christ died. Nor ought I to be less grateful to him who suffers loss in order to free me, than if he suffer at my asking; although in the first case my liberation is the final cause, and in the second my prayers are the moral and efficient cause. Secondly, we can add that the foreseen future will of the borrower is the moral and efficient cause of desisting from the gain of trade. For although you be not moved by the loan manifested, it is just as if you were moved by the absolutely foreseen future loan to withdraw the money: for you do not desist from trade because you are about to lend; but you are about to lend because you desist from trade: yet nevertheless you are moved by my foreseen future will of asking a loan. Wherefore truly my will and my asking of the loan is the moral cause of the ceasing gain; and this suffices for exacting it, etc.”

LI. The same de Lugo, in the place cited, no. 94: “These things being supposed concerning both parts of the former case, it seems that it must consequently be said that in the latter also ceasing gain may be exacted, when no one in particular is foreseen as about to ask, but some men in general, for whose sake you withdrew money from trade; as Malderus concedes absolutely and without scruple. … The reason can be gathered from what has been said: because between this second case and the first there seems to be only this difference, that in the first I in particular was foreseen as about to ask a loan; but in the second I was not foreseen in particular, but nevertheless in the aggregate, indeterminately. But this seems to matter little to the purpose. … Which can be explained by the example adduced above of the PASSION OF CHRIST. For although Christ, before his will of suffering, did not determinately foresee the future sin of this man, or that some men would sin mortally, yet he willed to pay the price of his blood for their justification, and still it is truly said that the sin of this man is the cause. … Because under that distinction all future things are known disjunctively, so that in willing to die for the freeing of those who were about to sin, he willed to die for this man, if this man should in fact have sinned. If therefore you wish to reserve money for him who will ask it, whoever he be, foreseeing that someone will ask, you willed in fact to reserve it for him, although known indeterminately.”

LII. Fr. John Azor, part 3, book 4, chap. 4, question 3: “Whether ceasing gain may be paid by an anticipated payment? It is answered by common consent that it may not. But it must be noted that this is to be understood thus. For example, Titius lends to Caius, and because it is agreed between them that by reason of ceasing gain Caius shall pay Titius five, it is called an anticipated payment if Titius give Caius ninety-five. This is altogether unlawful, because manifest usury. For it is just as if he should lend ninety-five, that afterwards a hundred should be repaid him.” But it is not unlawful if the anticipated payment be understood thus: Titius lends a hundred to Caius, and it is agreed between them that by reason of ceasing gain Caius shall pay Titius five — for example, a certain portion of oil, wine, or corn, or a pair of hens, which Caius gives by reason of those five which it was agreed between them should be paid by reason of ceasing gain.

LIII. Fr. Thomas Tamburini, Book IX, chap. 5, § 4: “We have handed down certain remedies or just artifices, Book VIII, On the Decalogue, tract 3, chap. 8, no. 16, by whose help something may be taken in anticipation.” (The just artifices handed down in the place cited are these.) “Caramuel, Book II of his Moral Theology, no. 755, removes the difficulty thus: Let there be two contracts, one of lending, the other of sale; and so the lender will be able to take now ten, or at least eight or six. I explain (says Tamburini): The lender now lends a hundred gold pieces for a year, with the hope of receiving thence a lawful gain of another ten beyond the principal. Let him now sell this hope of ten of gain in anticipation to the borrower himself, which hope will be worth, all things being expended by an expert man, six or eight gold pieces: for at once, now, he will be able without the stain of usury to take these six or eight gold pieces, not indeed by force of the loan, but by force of the sale of the gain hoped for and sold to the borrower.”

LIV. The same Tamburini, in the same place, no. 18: “Lessius, Book II, chap. 20, no. 100, frees himself from the same difficulty thus. Let someone lend you a hundred, and let him lend with interest, or without interest. For presently these may be returned to the lender without any injustice of his own, for the interest owed to them. For then you, the borrower, will not pay the gain out of the whole sum lent with interest, but out of another. — You will say: I shall be burdened by this, that I pay in anticipation what I do not yet owe. I answer thus for Lessius: But you will certainly owe it; and on the other side the trouble of giving now what you will owe afterwards seems sufficiently compensated by this, that the lender lends you gratis, without interest, those nine.”

LV. Fr. Antonino Diana, Vol. VI, tract 5, resolution 47, no. 5: “I shall show to confessors two modes by which penitents in lending may bargain that the gain be at once returned to them out of that loan. The first is that of Leonard Lessius, etc. The second mode is that of John de Salas and John Azor, namely, by not receiving that ceasing gain out of the sum of money itself, or out of some fruit-bearing thing, but, for example, in such a quantity of oil, of corn, of wine, etc. Confessors will note this: in practice they will extricate themselves. FOR THE REMOVING OF OCCASIONS OF SINS LET THEM USE THESE COUNSELS.”

LVI. Whether it be usury that the borrower at the beginning of the loan should pay the gain on occasion of the loan. Baunius, in his Moral Theology, Vol. III, book 2, question 12 (cited in Diana, in the place cited, resolution 45), answers in the negative, scandal being set aside: “First, because time is something extrinsic to usury: therefore from it the payment of ceasing gain does not contract the stain and vice of usury. Secondly, as soon as anything is owed, to pay it is not evil; but ceasing gain is owed to the lender as soon as the loan is made: therefore he will then be able to pay it.”

LVII. Fr. Paul Layman, Book III, tract 4, chap. 18, no. 2: “A citizen for the greater part of the year has money ready, out of which he may give a loan to needy craftsmen, especially weavers, a pledge being left him for the security of payment, for example a web. But when the pledge has been received, and payment is to be made after half a year, an increment is to be added upon each florin given on loan — for example, one batzen. For it must be considered that that increment is not received by reason of the loan, but by reason of the obligation, burden, and care which that citizen takes upon himself for the sake of the weavers, that for nearly the whole year he may have money in readiness for them, that at whatever time they come to his house he may admit them, count out the money, etc.; which obligation is appraisable at a price.”

LVIII. Fr. Leonard Lessius, Book II, chap. 21, doubt 16, no. 130: “Certain Doctors judge that it is unjust and palliated usury when the same man buys back who sold. But it is not unjust, even though the seller himself buy back, provided it stand within the limits of a just price. … The reason is that the first sale is just; because the same wares are resold. Nor does it matter that this resale is made at the lowest price: both because wares which are pressed upon one by a seller become cheap. Nor does it matter either that the buyer is the same who before was the seller. BECAUSE IF ANYONE ELSE COULD BUY AT THAT PRICE, WHY NOT ALSO HE WHO SOLD?”

LIX. Fr. Thomas Tamburini, Book IX, tract 1, chap. 4, § 1, no. 6: “The first title is, because the buyer will be without the money which he himself hands over, for three or more months, whence he will be deprived — even if he be not a merchant — of the opportunity and freedom of gaining something with that money that is to be repaid, through other trades perhaps offering themselves.”

LX. Fr. Lessius, Book II, chap. 23, doubt 9, no. 85: “You will ask whether that which is owed to exchangers by reason of provisions and interest may be continuously added by them to the principal, so as to increase the exchange.” He answers: “This cannot be done, unless they be morally certain that they could have given it at once to others for re-exchange, and have gained by it. For then, by reason of ceasing gain, they can unite it to the principal for the increase of the exchange.”

LXI. The Fathers of Salamanca, tract 14, chap. 4, point 2, § 4: “Things are not pledged in order that of necessity the rent-charges be paid out of them; but that the payment itself may be the more secure: and therefore they are pledged as a pawn and hypothec, not as the foundation of the rent-charge. But so it is that even if the pledges or the hypothec perish, the obligation does not cease (law Adversus, Code, On Actions and Obligations). Therefore neither, when the things pledged to the rent-charge perish, does the rent-charge vanish.”

LXII. Fr. Thomas Sánchez, Book I of his Moral Counsels, chap. 7, doubt 2: “Whether one who has a licence from the Pope or the Bishop to ask alms for one year, by himself or by another, that he may provide for his own necessity, may let out this right to another for some price. … The second and more probable opinion says that he may, and that no obligation of restitution is caused: because by no express law is he forbidden to let it out; nor is he made incapable of receiving the price of the letting; and he lets out that right which he has, and it is a contract of fortune, by which each party is exposed to the danger of gain and of loss. So Henríquez, Book 7, On Indulgences.”