Chapter V — On assurance, pledge, composition, emphyteusis, loan for use, precarium, deposit, letting, hiring, promise, donation

I. QUESTION I. What is assurance? ANSWER. It is a contract by which for an agreed price a man takes upon himself another's danger, being about to compensate it either wholly or in part. The quantity of the price is fixed by the laws of the marketplaces. All grant that this contract is lawful. In the chapter Naviganti the assurance prohibited is in respect of a lender, on account of the danger of usury.

II. QUESTION II. What is suretyship, pledge, hypothec, and composition? ANSWER. Suretyship is the taking upon oneself of another's obligation, by which a man binds himself to fulfil it, the principal debtor failing. That contract is called subsidiary and accessory, because the surety is substituted for the principal debtor. He who constitutes himself a principal debtor for another is not properly a surety. Often nevertheless sureties constitute themselves principal debtors, who are called mallevadori in principalità. These can be directly compelled to payment, the first debtor being left aside.

III. Pledge and hypothec are wont to be taken for the same thing. Strictly taken, nevertheless, those contracts differ: for a pledge is of movables only, a hypothec of immovables. A pledge is defined a contract by which a movable thing is delivered to a creditor for the security of a debt. A hypothec is a contract by which an immovable thing, by a bare convention, without delivery, is obligated to a creditor for the security of a debt, so that if the other do not satisfy, satisfaction may thence be sought. A hypothec is twofold: one general, by which all goods are obligated; the other particular, by which a man obligates some determinate thing.

IV. Composition is an onerous convention by which doubtful and uncertain rights between parties are settled. This, lawfully constituted between the parties, has the same force as a judge's sentence. Wherefore, it being once carried out, restitution in integrum is not granted, unless an enormous injury appear. Would that this contract, useful to both parties, were more frequent, so many lawsuits pernicious even to the victors being dismissed.

V. QUESTION III. What is emphyteusis? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred for a long time, the direct being retained, with the burden imposed of an annual pension to be paid. The word emphyteusis is Greek, which in Latin signifies grafting or planting: because formerly untilled estates were delivered to be planted.

VI. If an emphyteuta for three years does not pay the agreed pension entire to a lay lord, and for two years to a church, by that very fact he falls under the penalty of forfeiture, and the proprietary lord can deprive him of the emphyteutic thing with all the improvements made.

VII. QUESTION IV. What is a fief? ANSWER. It is a contract by which the useful dominion of an immovable thing is transferred, the direct dominion being retained, under the burden of fidelity and of personal service. It differs from emphyteusis, because a feudatory or vassal does not pay the lord an annual pension, as an emphyteuta does, but only owes personal service of defence, aid, and fidelity, when required by the lord.

VIII. QUESTION V. What is a loan for use? ANSWER. It is the gratuitous granting of some thing as regards its use only for a fixed time. But precarium is the gratuitous granting of some thing as regards its use only, revocable at the pleasure of the grantor. Contracts of this kind are akin; they differ only in this, that a precarium can be demanded back at the pleasure of the grantor, but a loan for use only when the appointed time has elapsed.

IX. QUESTION VI. What is a deposit? ANSWER. It is a contract by which a thing is committed to another's trust for custody alone, that it may be rendered back entire. There is required the mutual consent of the depositor and of the depositary. A depositary cannot use the thing deposited without the depositor's consent. If nevertheless it be money which suffers loss from use, he can use it, provided he be always ready to render it at the depositor's pleasure. He ought to use diligence in the custody. If loss follow, he is held to recompense for grave fault only. Cloistered religious cannot undertake a deposit without the prelate's licence: the monastery is not held to compensation if the deposit perish with a private religious, or with the prelate, unless they had undertaken it with the chapter's consent. The rest, by reason of mind, are capable of receiving a deposit.

X. QUESTION VII. What is letting? ANSWER. It is an onerous contract by which the use, or the fruits, of a thing or of a person is sold for a price. Hiring is a contract by which the use of a thing or of a person is bought for a price.

XI. QUESTION VIII. Do those sin who let houses for the exercising of usuries, for harlotry? ANSWER. All the Fathers affirm it, as I have made plain elsewhere. Fr. Claude La Croix, Book 3, part 2, doubt 1, no. 1042, heaps up opposed opinions — probable, improbable, and lax — and after his manner subjects the same to the discretion of his readers, as if Pyrrhonism were Christian morality. He shows himself nevertheless to incline to the opinion teaching that such letting is lawful: because this, he says, tends proximately to the giving of a habitation, but remotely affords an occasion of sinning. This opinion, as it seems to me, is false. See what has been said where scandal was treated.

XII. QUESTION IX. What is a promise, and what is its obligation? ANSWER. It is the free and spontaneous giving of one's word concerning a thing lawful and possible. For there is required for a true promise an obligation of furnishing, out of the virtue of fidelity, that which is promised; nor does the mere will of doing suffice; and therefore it is called a giving of one's word. It is called free and spontaneous, because a promise is a gratuitous contract.

XIII. That a promise may bring in an obligation, it must be accepted by him to whom it is made. A promise confirmed by oath cannot be revoked before acceptance, because the promiser by the bond of religion binds himself not to revoke the promise, whatever some may say to the contrary. The gravity of the obligation in a gratuitous promise depends upon the intention of the promiser, who as regards this is the lawgiver.

XIV. QUESTION X. What is a donation? ANSWER. It is the liberal delivery of some thing. One is real, set in the delivery of the thing; another verbal, by which a man gives an absent thing, which is an imperfect donation, and rather a promise. Again, a donation is distributed into absolute, which is perfect, and conditional, which has a condition annexed. Lastly, one donation is between the living, which continuously transfers dominion to the donee, even while the donor lives; another is a donation by reason of death, in which a man now gives a thing, but to be possessed after death. This is revocable, the former not, a few cases excepted.

XV. Those can give who possess absolute dominion of the thing to be given. Hence religious cannot give. The causes of revoking a donation are: first, the donee's ingratitude proved in court; second, offspring afterwards received; third, if the donation be undutiful, against paternal piety toward sons, as if it injure the lawful portion owed to sons; fourth, if anything be given for a cause, and the cause do not follow.