Chapter IV — On the contract of selling and buying. On those who can sell and buy. What things are vendible

I. QUESTION I. What is buying? ANSWER. It is the agreement of giving a determinate price for a ware. Selling is the agreement of giving a ware for a determinate price. These two partial contracts coalesce into one. That contract is onerous. The dominion of the ware is not transferred before the delivery of the same. The buyer before delivery has a right to the thing, but not dominion. Wherefore if before delivery a second buyer buy, and the thing be delivered, he acquires dominion, nor is he bound to deliver the thing to the earlier buyer. That dominion therefore may be transferred, the payment of the price and the delivery of the thing are required. If either of these conditions be lacking, authors commonly assert that dominion is not transferred. Wherefore if the buyer alienate the thing, the price not being paid, the seller retains the right of demanding it back wherever he find it. If nevertheless the seller trust the thing to the buyer, and hold the price as paid, then dominion has been transferred.

II. QUESTION II. A thing sold to two buyers, to whom is it to be delivered? To whom does it perish before delivery? ANSWER. It is to be given to the earlier buyer, who, since he is prior in time, is also prior in right. If to the one it was only sold, and to the other both sold and delivered, the thing is that man's, unless the first be privileged, as pious places, a church, cities. In which case indeed the thing is owed to the earlier buyer, even if the ware has been delivered to the second buyer. The same is to be said when to the earlier buyer, even though not privileged, a pledge was given in testimony of greater security. A thing sold perishes before delivery to the seller, because a thing perishes to its lord. But dominion before delivery pertains to the seller. If the thing have been delivered to the buyer, and the price be held as paid, it perishes to the buyer.

III. QUESTION III. To whom do the fruits of a thing sold pertain before the payment of the price? ANSWER. If the fruits hang upon the plants at the time the thing is sold, they pertain to the buyer, because they are then parts of the thing sold. Authors dispute concerning future fruits, before the price be paid. The price can be regarded in two ways. First, when it is held as paid: namely when the seller grants the buyer a definite time for payment: then it is certain that the fruits pertain to the buyer. Secondly, the price is considered as promised by the buyer to be paid continuously, or at such a time, so that the seller does not hold that price as paid. Concerning this second case there is dispute.

IV. The first opinion defends that the fruits pertain to the seller, because he alone is lord of the thing sold before the price be paid or held as paid. The other opinion defends that they pertain to the buyer, because the civil laws, which deny that dominion is transferred before the payment of the price, have been abrogated by canon law forbidding all usury. But as regards this, the custom and usage of each region is to be regarded, and what laws obtain in this matter in the forum: and according to these the question is to be decided.

V. QUESTION IV. Can contracting parties enter upon an agreement that the buyer render to the seller the fruits of the thing, or the price of the same, until he has paid the price? ANSWER. Molina, Bonacina, Viva, and others affirm it. But this opinion is to me false, since that agreement is usurious, and a loan disguised by an agreement. But, says Fr. Viva, the buyer does not pay on account of the delay of payment, but on account of the gain which ceases to the seller by reason of the protracted payment. These are evasions. If the seller suffer loss, let him either defer the delivery of the thing until the price be paid, or exact compensation of the loss which he in fact suffers. If the seller grant a delay of time for the payment of the price, and the buyer be tardy, then he is bound to compensate the loss, and the seller can by right demand back reparation of that loss which he in truth suffers. These things are just and equitable. But the aforesaid sale with the burden of rendering the fruits of the thing delivered bears of itself the appearance of usury, and is therefore to be avoided.

VI. QUESTION V. Whose are the fruits perceived in the meantime, when it happens that a contract of sale is dissolved? ANSWER. Authors teach that a contract can be dissolved in four ways. First, if you sell in this manner: I sell you a house on this agreement, that if within a year a better condition offer itself to me, the house be free; or if you add the lex commissoria, as if you say: I sell you the house, that within a year you pay the price: otherwise let the contract be null. Second, if the sale be celebrated with an agreement of resale: as if you contract in this manner: I give you moneys, that you may sell me the house; and I will sell the house back again on this law, that as often as you render the moneys, I will sell it again. Third, if by mutual consent after a year the contract be rescinded. Fourth, if the contract be conditional, and the condition be not fulfilled. These things being laid down, the Salmanticenses, Lessius, and Bonacina teach that a contract celebrated expressly and manifestly with an agreement of adjudication to a day, or with the lex commissoria, is by that very fact null, and consequently that the fruits pertain to the seller. Similarly, if the sale be affected by an agreement of resale, they teach that the fruits of the intervening time produced from the time of the sale up to the time at which the contract is dissolved pertain to the buyer; but those which are gathered at the time of the resale belong to the seller. Whether this contract bears the appearance of usury shall be said elsewhere. But if the sale be dissolved by mutual consent, the fruits pertain to the buyer, according to what is said in no. 4, because the contract before the dissolution was valid. If finally the condition be fulfilled, the fruits are the buyer's; if it be not fulfilled, they are the seller's. For the rest, in these contracts the wills of the contracting parties are to be regarded, guiles and pretences being removed.

VII. QUESTION VI. Who can sell and buy, and what things are vendible? ANSWER. All who are apt for celebrating contracts can by right sell and buy, unless the laws forbid; as it is forbidden to guardians and curators to sell the goods of wards and minors; and to executors of testaments it is forbidden to buy the goods of the deceased. But those things whose dominions can be transferred are vendible. Hence spiritual things cannot be sold or bought, nor those which are annexed to spiritual things, as benefices, rights of patronage, the holy oils, the relics of saints, a temple, and the rest of that kind. Forbidden also is the sale of an inheritance before the testator's death.

VIII. QUESTION VII. Are things bought with another's money the buyer's, or the money-owner's? ANSWER. They become the buyer's when he uses another's money in his own name — say a deposit — and buys at his own advantage and risk, no law standing in the way. But when goods are bought with the money of wards, of soldiers, of churches, of minors, then the buyers acquire the goods not for themselves, but for the churches, the soldiers, the wards, the minors.

IX. QUESTION VIII. Is the sale of another's thing valid? ANSWER. In a sale dominion is transferred. The seller of another's thing has not dominion. Therefore he cannot transfer it. If a robber sell you another's thing, since he lacks the dominion of the same, he cannot transfer it. But if he acquire the dominion of the money received from the buyer, he is nevertheless bound to restore it, and to compensate the losses thence coming to him.

X. QUESTION IX. Whether the sale of those things which are applied to depraved uses is lawful? ANSWER. Certain things are evil by their own nature, as maleficent charms, libellous pamphlets, and rings to which demons are said to be bound, and the rest of that kind. That wares of this kind cannot be sold is certain. Those who publish or sell libellous pamphlets against the Pope, the cardinals, or the mendicants, incur excommunication. The author of a libellous pamphlet against laymen is punished with the penalty of death, Code, On Famous Libels, law 1; by canon law he is to be beaten with rods. Chapter Qui in alterius. Read the constitution of St. Pius V which begins Romani Pontificis providentia, published in the year 1572.

XI. QUESTION X. Do those sin who sell poisons, women's paints, playing cards, idols, and the rest of that kind? ANSWER. Those who absolutely sell poisons, no regard being had of the buyers, sin gravely, and ought to be punished as betrayers of human society, because they kill men by another's hand. But those who sell poison to an honest buyer, prudently judging that he will apply it to a good use, as indeed it can be applied, do not sin.

XII. That women's paints can be sold the Salmanticenses teach, and for this opinion they cite St. Thomas, who, II-II, q. 169, art. 2, reply 2, writes these things: The painting of women, of which Cyprian speaks, is a certain species of feigning, which cannot be without sin. These are decisive words. Cyprian is speaking of women who apply paints to counterfeit and display beauty. In confirmation of his doctrine St. Thomas alleges the authority of St. Augustine: To be painted with pigments, that one may appear either more ruddy or more fair, is an adulterous deceit, by which I doubt not that even husbands themselves are unwilling to be deceived — to whom alone are women to be permitted to be adorned, according to indulgence, and not according to command. It is lawful for women to hide from men a deformity, a hump, a scar, and the rest of that kind: but the deformities of countenances are not hidden by paints. Paints are commonly applied to counterfeit a lie of beauty. Women, while they stay at home exposed to the eyes of those who deserve it, commonly neglect all ornaments; but when they go out in public, and, as though fixed upon a stage, they would burst forth as mimes, then they appear painted, curled, adorned, decked out, and hedged about with all the tricks of worldly or rather of infernal vanity. Who would say that these do not sin, and consequently the sellers themselves, who knowingly hand over paints to women of this kind? But if paints be sold for the hiding of deformities, then the sale is not unlawful. If the paints serve only for the counterfeiting of beauty, and this be perceived from the condition of the buyers, the sellers sin. Wherefore from the circumstances it must be perceived whether the sale be lawful or unlawful.

XIII. That dice, knucklebones, and playing cards can lawfully be sold, the younger authors everywhere teach. St. Thomas, St. Raymond, St. Bonaventure, St. Antoninus, and the rest of the saints and the graver theologians condemn games of chance, of dice and cards, of sin in those who give themselves without measure to games of this kind. Cards can be applied in those games which depend upon industry and art, and can serve for recreation or solace. In these games laymen can indulge without fault for some short time. For those things which are applied for the sake of recreation have narrow bounds: for man is born for labour and for serious works to be carried out. Recreation and honourable solace are medicines destined for the restoring of strength. If men leap beyond these limits of medicine, they straightway decline into vices. Sellers of knucklebones, of cards, and of idols cannot therefore be absolutely condemned: because these can be applied to games not of chance but of industry; idols can be applied to ornament, and to the illustrating of antiquarian study. But because knucklebones, cards, and paints are for the most part applied to depraved uses, therefore merchants are to be exhorted to abstain from selling these wares. These things are rigid, you will say. I confess it. But the way of heaven is narrow, and the life of Christians is a continual penance.

XIV. QUESTION XI. Whether probabilism is vendible by a judge? ANSWER. Lest anyone suspect that I propose this truly festive question to create odium against probabilism, it concerns me to admonish the reader that Fr. Thomas Tamburini disputes this controversy, Book VIII, On the Decalogue, tract 3, chapter 7, § 3, no. 13, where he proposes this title: The sale of a probable opinion; and in these words discusses the question proposed: “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, chapter 3, which, besides those cited there, Dicastillo follows, Book II On Justice, tract 1, disputation 5, doubt 7: that it is lawful for a judge to choose one of two equally probable opinions, and according to it to pronounce sentence. 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?”

XV. He answers that he disapproved this opinion in the place cited. “Let him nevertheless read it” (he adds) “who will, in Lessius, Book II, chapter 14, doubt 9, no. 64; Valentia, 2-2, question 63, article 4, disputation 5, question 7, part 4; Salón, 2-2, question 61, article 4, conclusion 2.” Further, Fr. Lessius in the place cited, besides Valentia, Salón, Diana, and many others, maintains this opinion — namely that a judge can by right accept money for passing sentence according to one probable opinion rather than according to another — in these words: “It can be doubted whether he (the judge) sins against justice, if he accept something that he may follow this rather than that in judging. It seems that he does not so sin … because he is not bound to the one or the other determinately, 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, if otherwise it be 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.”

XVI. Would you have things better? Probabilism teaches that it is free to select either of two probable opinions. When two contradictory probable opinions occur, a judge can pass sentence according to that which shall have pleased him more. Further, that he select this rather than the other is appraisable at a price. Therefore he can by right sell this preference of one opinion over another. Therefore probabilism is matter of selling and buying. What wonder then, if a ware so precious be defended with so great a heat of disputation? See how true is the oracle of Alexander VII, that this manner of opining is the head of all evils.