Chapter III — On the personal rent-charge, a wonderful cloak of usury

I. If real rent-charges themselves, approved by pontifical authority, present a difficulty, and thence the patrons of usuries snatch a handle for making moderate usuries honourable, everyone sees what is to be said of personal rent-charges. The justice of real rent-charges is defended if the prescribed conditions be observed. These conditions are lacking to personal rent-charges. Therefore they are usurious.

II. Martin Navarrus, On Usuries, no. 80, testifies that almost all theologians and canonists condemn the personal rent-charge. Fr. Lessius cites Biel as a patron of the personal rent-charge. But Biel in Book 4, distinction 15, question 12, says: This I say recitatively, and so forth. Fr. Lessius answers, Book II, chapter 22, doubt 10, no. 56, that this is no objection, saying: For we are wont to speak thus, for the deprecating of odium, when we bring forth from our own opinion something of nerve and adverse to a received opinion. Have you understood? We are wont to speak thus when we forge something new and adverse to received doctrine. Is it lawful therefore in controversies of morals to forge new doctrines opposed to the received doctrine of the ancients? For the declining of odium ambiguous words are used. Either the doctrine is true or false. If true, is odium to be feared by the disciples of Jesus Christ? But it is disposed by divine providence that the doctrine which they themselves maintain should be called by the authors themselves new and opposed to ancient doctrine. For if it is new, and handed down neither by the Gospel, nor by the Fathers, nor by the Councils, it is assuredly false.

III. Fr. Paul Layman, Book 3, tract 4, chapter 18, writes: A personal rent-charge redeemable on either side, settled upon present industry, is probably defended. Nevertheless it is not free from the danger of a usurious intention. So, against the common opinion, say the Doctors. Do the Doctors defend probably against the common opinion? Who are these Doctors who set themselves against the doctrine of the Church of all ages?

IV. Fr. Patrick Sporer, the collector of Tamburini, Layman, Sánchez, and Diana, tract 6, chapter 1, no. 16, writes: Most probably lawful also is the personal rent-charge … even redeemable on either side, even with an agreement of assurance added, regarding precisely the nature of the thing, although everywhere there underlie a danger of usurious intention: therefore it is deservedly prohibited by the bulls of the Pontiffs. The personal rent-charge is lawful, and indeed most probably, and at the same time deservedly disapproved by the bulls of the Pontiffs? Are new casuists better interpreters of natural and evangelical law than the Supreme Pontiffs? If the rent-charge is deservedly disapproved by the bulls of the Pontiffs, let us, disputations being dismissed, with joined hands disapprove the same. But Fr. Viva resists, who in part 4, question 4, article 3, no. 6, teaches that the Doctors most commonly deny that the personal rent-charge is usurious.

V. Consider the rise, increase, and propagation of this opinion. Biel began recitatively; Fr. Lessius followed speculatively; Fr. Layman probably; Fr. Sporer most probably; Fr. Viva most commonly. Thus are new opinions propagated against the ancient doctrine of the holy Pontiffs.

VI. But if the pontifical bulls forbid the personal rent-charge, as our adversaries confess, by what reason can they maintain it? And that the pontifical bulls disapprove this contract, besides our adversaries, Benedict XIV testifies, Book 7, chapter 48, no. 5, On the Synod, where he says: It is superfluous to assail with new arguments the personal rent-charge, which St. Pius V has already proscribed in the praised constitution Cum onus, where among the other conditions for the honesty of a rent-charge he requires this also: that the rent-charge be constituted in a fruit-bearing thing, not of any kind whatsoever, but immovable, certain, and expressly designated.

VII. Fr. Paul Comitolus, a most learned Jesuit and antiprobabilist, Book 3, Moral Answers, question 27, cries out: Who could think that all the provinces and kingdoms of the Christian empire are not bound by this law? … But to me it is by no means doubtful that the constitution has force in all kingdoms and provinces: which those words of the same constitution declare not obscurely: But we will, and so forth. … There is added this most firm reason: The Pontiff could by a necessary law remedy pernicious rent-charges; he ought, he could, and he willed to remedy them in all places. Wherefore it was necessary that this law be in the highest degree general: otherwise the Roman Pontiff would not very prudently have consulted the salvation of all Christian nations and likewise his own, since he would not have taken away that evil from all the provinces of the Christian world, which he could and ought to have taken away by an equitable sanction.

VIII. But what argument of non-acceptance will someone bring forward? That it was not promulgated in every province? Imagine even this hypothesis. What province, what kingdom instituted an examination, the form of law being observed, whether the Pian Bull is to be accepted or not? None at all. Why then is it not accepted? Because avaricious and covetous men and usurers have continued these usurious rent-charges and usurious exchanges. Who would dare to assert this? For no other cause therefore can it be said not accepted, save because some theologians, seeing the peoples for the greater part celebrating personal rent-charges, dry exchanges, and triple contracts no otherwise after the Bull than before, with a pious intention, as it becomes us to think, of preserving them from the crime of usury, began then to write: The Bull is not received in usage. And not a few after them continued to write that the Bull was not received in usage, although in these times Benedict XIV has alleged the same Bull against personal rent-charges. But let them hear and imitate the most celebrated Jesuit Fr. Comitolus, Book 3, question 27, no. 5, thus speaking: For the arbiters of sacred confessions ask: what then shall we have to do with those who perceive fruits from rent-charges which are neither made nor celebrated according to the prescribed rule of the constitution? What likewise with the lords of the provinces? I would do this. The lords of the provinces, unless they were willing to accept the Pian Constitution, I would not absolve. As for the rest, if they have committed anything by fraud or guile in contracting a rent-charge after hearing the law of Pius V, I would pronounce void whatever they have done, that the contract was null, and that therefore they had no right of perceiving the pensions; and thus that they are liable to necessary restitution.

IX. The champions of the personal rent-charge are divided into two ranks. Some defend the personal rent-charge only on the part of the seller, not on the part of the buyer, as Henry of St. Ignatius, whose work has been proscribed, and in the matter of usury is perhaps laxer than is equitable — which be said for the unskilled, who cite this author as if he always maintained sound doctrine. Others defend the same redeemable on either side, a hypothec also being added.

X. Thus do those authors argue. I can sell you the right of perceiving the fruit of my field. Therefore by the same reason I can sell you a part of the fruits of my industry. Either therefore the real rent-charge is to be disapproved, or the personal rent-charge approved.

XI. A futile and inept quibble. Land by its own nature brings forth fruits in perpetuity. A human person is changed by the day. Today fruitful, tomorrow barren. Today he contracts a personal rent-charge, tomorrow he falls into a long illness. Meanwhile the rent-charge runs every day. The law of nature therefore being regarded, to which the defenders appeal, that rent-charge is usurious, and as such the Pontiffs have condemned it, wiser interpreters of that law than others.

XII. The clause which prescribes that a fruit-bearing and immovable estate must underlie the rent-charge regards natural law and the very substance of the contract. This clause four Roman Pontiffs enjoin: Martin V, Nicholas V, Callixtus III, St. Pius V. It would never have been disputed among theologians before the Pian constitution whether the aforesaid clause were merely of human law, but whether it would be usurious, this clause being removed. They declared the rent-charge usurious, a fruit-bearing, immovable, and determinate estate being lacking. Therefore now also it is to be so held.

XIII. In few words I sum up everything. If reasons be compared with reasons, the reasons for the personal rent-charge were invented first recitatively, then speculatively, thence probably, again most probably, at last propagated most commonly among the younger authors. If the authority of the theologians and canonists be compared with the authors, even Fr. Lessius himself confesses that in his time our opinion was the common one. Imagine all the arguments of either side equal. The Supreme Pontiffs condemn the personal rent-charge. Imagine also — which I altogether deny — that the pontifical prohibition is of positive law. What then? Do laws which forbid some contract on account of the appearance of usury, on account of the most grave dangers of frauds, oppressions, and usuries, not oblige everywhere among the nations? Is the obligation of avoiding grave dangers and the scandal of heretics not of natural and divine law? Does it not bind all provinces? And in a matter so most grave as avarice and usury, are we to adhere to the interpretations of certain men, the sanctions of graver theologians and of the Supreme Pontiffs being neglected? Do you, Christian reader, sit as judge.

XIV. I hold it therefore certain and firm that the personal rent-charge, whether redeemable on either side, or irredeemable, or conceived in whatever manner, is usurious. The usury indeed betrays itself more evidently in the rent-charge redeemable on either side; but the opinion concerning this irredeemable rent-charge is not therefore probable. St. Pius V, as our adversaries confess, condemned the personal rent-charge. But an opinion condemned by the Holy See lacks all probability. For fourteen centuries the Christian commonwealth lived without rent-charges. The Roman Empire itself was ignorant of rent-charge contracts. As soon as they were brought in, four Roman Pontiffs by prescribed clauses purged the real ones from the stain of usury. If you desire more concerning real and personal rent-charges, read Vol. VII, Book 3, dissertation 4, chapter 12, where you will find many things which regard the history, and all the sophisms of our adversaries overthrown.

XV. QUESTION I. The law of nature being regarded, is that agreement lawful by which a censuary is bound to redeem the rent-charge at the buyer's pleasure? ANSWER. Some affirm it. But this opinion is to me false, the law of nature alone being regarded. As often as you deliver money with an agreement that just as much be restored, it is usury if you exact accessions beyond the principal. This happens in the present case. Since indeed you buy a rent-charge at the price of a thousand gold pieces; you perceive fifty every year; you compel the censuary that after a period of three or six years he redeem the rent-charge at the same price. What more is required for a true loan and usury? The matter stands contrariwise when the faculty of redeeming the rent-charge remains on the part of the seller alone. For this faculty does not take away the true character of buying and selling: because since the seller can never redeem the rent-charge, on his part a loan cannot be feared. Wherefore the buyer truly buys, since he cannot demand back the price given. This opinion the graver theologians defend. The seller can be obliged to redeem the rent-charge in the same coin, provided the danger of increase and of decrease be equal.

XVI. QUESTION II. The estate subject to the rent-charge perishing, does the rent-charge perish by natural law? ANSWER. St. Pius V in his constitution affirms that, the estate subject to the rent-charge perishing either wholly or in part, the rent-charge also perishes. The Salmanticenses nevertheless defend the negative opinion, tract 14, chapter 4, point 2, § 4, because, they say, estates are not put under rent-charges that from them the pensions may be paid, but as a pledge and hypothec for the security of the rent-charge. This opinion is to me false. For it being admitted, rent-charges are a true loan with a pledge added.

XVII. QUESTION III. Is a rent-charge lawful to which more estates are subjected, no part being designated and determined? ANSWER. St. Pius V, for the taking away of frauds and usuries, enjoins that a determinate part of the estate be subjected to the rent-charge. Since if the part subject to the rent-charge perish, it ought to perish to the buyer of the rent-charge. Nor is it an objection that in every instrument of a rent-charge all the seller's goods are substituted for the assurance of the same. Since substitutions and hypothecs of this kind are made that the estate subject to the rent-charge may be rendered secure from eviction: namely, if the estate were burdened with another rent-charge, subjected to a trust, or laden with another debt, then the debtor's other goods would have to supply. But for the rest, if the estate perish, it ought to perish to the censualist: this is certain.

XVIII. QUESTION IV. Is a life rent-charge lawful? ANSWER. The common opinion affirms it. For it is a contract of hazard, in which the danger of both parties is equal. For the principal exposed to danger can become fruitful, when the danger is equal as much in respect of the seller as of the buyer. Because nevertheless that contract has the appearance of hazard, unless necessity urge, I should not approve it in respect of those who of set purpose celebrate life rent-charges solely that they may gain. To me in this matter the water sticks. Wherefore, necessity being removed, I persuade Christians to abstain from this rent-charge.

XIX. QUESTION V. Is the contract commonly called a godere, for enjoying, lawful? ANSWER. Diana says this contract is most frequent in Italy. It is celebrated by this agreement. Sempronius gives you his house or his field, and you give him money answering to the value of the house or the field, thus bargaining mutually: You use my money, and I will use your field. When I shall wish, I will demand back the money, and you the field; or: For five years, or ten, use my money, and I will use your field. Some of the younger authors with Diana contend to make this contract honourable under the mask of a sale with an agreement of resale. But it is an open and crafty circumlocution and a mask of a loan. A sale with an agreement of redemption in favour of the seller is indeed lawful. But that agreement in favour of the buyer is usurious, as I have said above. And let these things concerning usury and the cloaks of usury suffice. Read Vol. VII, Book 3, dissertation 4, and the volume On the Usury of the Triple Contract, and the commentary on the Encyclical.