Article III. On Titles Excusing from Usury

Five principal ones are enumerated, namely: 1. emerging damage; 2. ceasing profit; 3. danger of the principal; 4. conventional penalty; 5. civil law.

The first four are very commonly admitted; concerning the last a dispute is carried on. We shall say a few things concerning each.

856. Emerging damage is the detriment which the lender suffers by occasion of a mutuum furnished to his neighbor ¹.

¹ Take care to note the distinction which custom has introduced between contracts equally gratuitous, namely commodatum and mutuum. For although by occasion of commodatum some account could be had of emerging damage or ceasing profit, either because the thing loaned is worn down by use, or becomes worse in any way whatever, or because the lender loses profit which otherwise he certainly could receive from the use or leasing of the thing loaned; nevertheless titles of this kind, on account of which something would be received from commodatum, are not usually admitted, and are judged repugnant to this contract. We see that the contrary has been done concerning the contract of mutuum. But I said that this was introduced by custom. For that formerly the gratuity of mutuum also excluded compensation for emerging damage, John Duns Scotus stands as witness. In 4, dist. 15, q. 2, art. 3, where he condemns usuries, he proposes to himself this difficulty to be solved: "If it is argued against this, that it is lawful for each one in contracts to preserve himself unharmed, as was said before, that one selling can sell more dearly by attending to his damage in selling; ... therefore in the same way, if he is induced by another to lend to him, it is lawful for him to preserve himself unharmed, which he cannot do except by accepting something above the principal." Moreover he adds this response: "I answer: if he does not wish to be damaged, let him reserve for himself the money necessary to him, because no one compels him to show mercy to his neighbor; but if he wishes to show mercy, he is compelled by divine law not to make it vitiated." And St. Thomas also testifies that this opinion was received in his own age. In De Malo, q. 13, art. 4, ad 14, he objects these things to himself: "Interest is twofold: one from the fact that something is not present, because namely someone did not acquire what he could have acquired; and to this interest no one is obligated. Another interest is from the fact that something is absent, because namely something has been taken away from someone from what he had; and from such interest an obligation arises. But sometimes it happens that from money lent someone is damaged in that which he has; therefore it seems that on account of this interest he can accept something without sin." But behold what he answers: "It must be said that from money lent, he who lends can incur damage of a thing already possessed in two ways. In one way, from the fact that the money is not returned to him at the appointed term; and in such a case he who accepted the mutuum is bound to the interest. In another way, within the appointed time; and then he who accepted the mutuum is not bound to the interest. For he who lent the money ought to have taken care for himself, lest he incur detriment. Nor ought he who accepted in mutuum to incur damage from the foolishness of the lender. And it is also similar in buying. For he who buys some thing justly gives for it as much as it is worth, but not as much as he who sells is damaged by lacking it." But as to ceasing profit, Francis Zech also sincerely admits (Rigor moderatus, etc., dissertation 2, section 27) that the more ancient Doctors "did not wish to acknowledge the title of ceasing profit, nor to permit a pact concerning compensation for it, when neither force in extorting the mutuum nor culpable delay in restoring had been admitted, but the money had been credited most freely." Indeed you see this opinion expressed and admitted most explicitly in the objection which St. Thomas proposed to himself above, although the holy Doctor softened these doctrines somewhat in the Summa Theologica, II-II, q. 78, art. 2. From these things surely much light shines upon this matter. For that emerging damage and a relinquished hope of profit are something appreciable by price, and that therefore a just reason is present from which to exact congruent compensation, not only common sense holds, but also the judgment of the Apostolic See confirms in the letters of Benedict XIV. Therefore, that the old Doctors denied that some compensation was to be sought on account of these things very clearly confirms the doctrine which must never be absent from view in this matter: that the gratuity of these contracts is not to be derived from there being no price of the work which is furnished, but from the nature of a gratuitous contract, by force of which the spontaneous liberality of one, in favor of another, renounces compensation for work which, of itself, as being appreciable by price, would admit compensation without injustice. And since the mode and measure of exercising liberality, with the obligation of charity now omitted which perhaps demands otherwise, is in the free power of each one, therefore according to the judgment of the contracting parties the contract can, without injustice, be more, less, or not at all gratuitous, the nature of the contract being varied according to their judgment. Thus, for example, Titius can transfer the dominion of his vineyard to Caius either by exacting a just price, and thus it will be a sale; or wholly gratis, and thus it will be a donation; or merely by exacting that a dinner be prepared for himself and a few other friends in the same vineyard twice during autumn; and it will be something mixed, which, although it seems to detract something from perfect donation, nevertheless contains no injustice, as depending wholly on the judgment of the contracting parties. But it would be alien to justice if, after a donation plainly offered and accepted gratis, he then exacted those dinners as owed to him from justice.

I. If by reason of the mutuum the lender suffers damage, there is a legitimate title of receiving something above the principal. The reason is that it is not equitable that you bear damage from a mutuum; for no one is bound to provide a benefit with his own damage, except in the necessity of a neighbor. Thus all. St. Lig., n. 768.

II. For this, however, the following conditions are required: 1. that the mutuum be the cause of the damage; 2. that nothing be exacted except compensation ²; 3. that the increase be brought into a pact from the beginning. St. Lig., n. 769.

² If some increase is justly repaid to the lender, because equity does not permit that from this benefit conferred on others he himself should incur damage, therefore the measure of the increase must be taken from the quantity of the damage to be undergone. It can certainly happen that this measure exceeds, indeed sometimes far exceeds, the limits of profit which either the laws or the common custom of places prescribe. Thus, for example, if someone gives in mutuum money with which otherwise at an opportune time he would procure oil, wine, grain, and other things necessary for domestic use, from which it happens that afterward he is compelled to buy those very things even at double price. What, then, will the confessor do with a penitent exacting an increase of this kind in those circumstances? Indeed, unless the circumstances demand an office of charity even with the damage of the lender, and the borrower, all things weighed, has judged the contract burdened with so great a charge to be nonetheless advantageous to himself, he could in no way condemn the penitent as guilty of injustice.

The same, moreover, can also be transferred to the title of ceasing profit; except that, since these profits are wont to be subject to uncertain events, and to be diminished and hindered, therefore the measure of the increase must be measured not from the hoped-for profit, but from the value of a prudent hope. See below, n. 872.

857. Questions. QUESTION 1. Can a lender exact compensation for emerging damage if he of his own accord offers himself for lending?

I answer affirmatively, more probably, with St. Lig., n. 769, etc. The reason is that even then the borrower, when he accepts the mutuum, is the true cause of the emerging damage. For the lender does not offer absolutely, but conditionally, namely under the condition of obtaining compensation.

QUESTION 2. Is it lawful for the lender from the beginning to agree concerning a certain profit to be received, if the emerging damage is only probably going to occur?

I answer affirmatively, provided proportion is preserved according to the probability of the damage. St. Lig., n. 770. Salmant., c. 3.

While we establish these things concerning emerging damage, we entirely abstract from the title of civil law and from the various contracts by force of which perhaps some profit could be legitimated from money lent to another, as will be clear from the things to be said. This same observation must also hold for the other titles soon to be explained, of ceasing profit, etc.

858. I. Ceasing profit is that which the lender would have gained, while preserving his thing or his money, if he had employed it in another lawful contract.

Ceasing profit is a legitimate title of exacting something above the principal. The reason is: 1. because then there is truly emerging damage ³; 2. because the hope of profit is extrinsic to the mutuum, and at the same time appreciable by price.

³ You will perhaps compose this answer with difficulty with the second of the conditions set forth above, namely that there ought to have been in the lender an intention of receiving profit from his money in some other way. Besides, if mutuum of itself is the true cause why profit ceases, would it not follow that there is embedded in the very nature of mutuum a cause why profit can always be exacted from mutuum? By what agreement, then, does the nature of this contract stand consistent with itself, which ought to be gratuitous, and rejects all profit of itself, no less than donation rejects price? These and other things of this kind, less coherent with themselves, which not rarely occur among writers, certainly show that it is altogether necessary that the whole matter be recalled to more solid principles, and that, when the discussion is of gratuitous contracts, the relinquishing of profit which otherwise the work furnished, if considered in itself, perhaps admits of itself, be referred back, as we have often already said, to no other cause than to the nature of the gratuitous contract into which the spontaneous liberality of the lender consents. And indeed, if you hope for and exact profit from the mutuum because the mutuum is the true cause of ceasing profit, you will not have the contract of mutuum, which rejects profit, but another contract, concerning the justice of which it will remain to inquire according to other principles.

II. The required conditions are: 1. the same as in the preceding title; 2. the lender must have had the intention of investing his money in business; otherwise the profit would not cease. St. Lig., Hom. apost., n. 149 and following.

QUESTION. Can you exact something by reason of ceasing profit on account of a mutuum of money, if you keep other idle money?

I answer 1. Certainly affirmatively, if you have reserved this for the use of the family, or lest you expose your state to danger, because by reason of the mutuum you are not bound to neglect your own thing. St. Lig., n. 771.

I answer 2. Probably affirmatively also in other cases, because the mutuum is the true cause why the profit ceases ⁴. St. Lig., ibid.

⁴ St. Thomas (De Malo, q. 15, art. 4, objection 4) preserves the distinction between ceasing profit and emerging damage in this way: in the one, someone has not acquired what he could have acquired; in the other, someone is damaged in that which he had.

859. Danger of the principal is a prudent fear lest the principal cannot be recovered. Danger of the principal, according to the more common and more probable opinion, is a legitimate title of some profit. The reason is, both because if a relinquished hope of profit is appreciable by price, a fortiori the danger of probable damage will be appreciable; and because things placed in safety are valued more highly than things placed in danger; and also because this is clear from the decision of the Sacred Congregation of Propaganda for the Chinese Missionaries, approved by Innocent X in the year 1645 ⁵. See St. Lig., n. 765.

⁵ The declaration which the Sacred Congregation issued with the approval of Innocent X is reported thus by St. Alphonsus: "The Sacred Congregation of Cardinals of the Holy Roman Church judged that by reason of mutuum immediately and precisely nothing is to be exacted beyond the principal sum; but if they receive something by reason of a danger probably imminent, and of the quality of the same, and with proportion preserved between the danger and that which is received, etc., they are not to be disturbed." To these last words the same St. Alphonsus adds this gloss: "These words certainly signify not mere toleration, but positive permission."

Except: 1. if the borrower is poor ⁶, because then the precept of lending urges from charity; 2. if the borrower secures the principal by pledge, because thus the danger ceases. St. Lig., ibid.

⁶ To this pertain the words of Benedict XIV (Const. Vix pervenit, section 5): "For no one can at least be ignorant of this, that in many cases a man is bound to assist another by a simple and naked mutuum."

860. You will object: Either the principal will perish, or it will not. If the former, the lender will receive nothing, namely neither the principal nor the stipulated increase; if the latter, in fact he will suffer no detriment. Therefore he ought to exact nothing.

I answer 1. Even if the principal is going to perish, it does not necessarily follow that the lender will receive absolutely nothing; for it can happen that the principal does not perish immediately, and then the interest which meanwhile is paid will be had as a certain compensation for the principal.

I answer 2. Although in fact the lender suffers no damage, nevertheless he can receive something above the principal; for he truly undergoes a danger appreciable by price. By wholly equal right, one who agrees with another concerning a price for insuring a ship can certainly exact that price, although in fact the ship has not perished. Therefore by parity, etc.

861. A conventional penalty consists in this, that the borrower obliges himself to pay something above the principal if he does not restore it at the prefixed time.

I. A conventional penalty is a legitimate title of accepting, besides the principal, that concerning which agreement has been made. The reason is that thus provision is made for the firmness of the contract, and at the same time the negligence of the borrower is guarded against. St. Lig., n. 766, etc.

II. The required conditions are: 1. that the delay of the debtor be notable and culpable; 2. that the penalty be moderate and proportioned to the fault. St. Lig., n. 766, and others commonly.

See more, if you please, concerning the preceding titles among the authors. We have touched on very few things only, because, when the title of law is added, the others will now occur more rarely in practice ⁷, as will be clear from what is to be said.

⁷ That is, the necessity of seeking these titles urges more rarely.

862. Formerly there already existed among various peoples laws by force of which a certain profit could be received from mutuum, especially among the Romans, and more recently among the Germans. See Mastrofini, c. 4, 8, 9. But in our times laws of this kind have been received by general use among most peoples. From these, moreover, it is rather commonly permitted that an annual profit be received from a mutuum of money on this condition: that five for each hundred may be received in civil matter, and six in matter of commerce. In France, moreover, profit is granted whether from money, or grain, or another borrowed thing. But by the law of September 3, 1807, it was decreed that the profit to be received from mutuum should not exceed 5 per 100 in a civil matter, and 6 per 100 in a matter pertaining to commerce. From the same law, if anyone is convicted of having violated the established rate, he is condemned to restore the excess. But if he has done this more often, it is decreed that he is to be punished by a fine. Whether, however, that law creates a legitimate title in the forum of conscience for receiving profit from mutuum is disputed. The affirmative opinion is more probable and more common. Hence the following

The title of civil law is more probably a just and honorable reason for receiving some moderate profit from mutuum ⁸, even with any other title whatsoever excluded.

⁸ You already see that some stain of confusion is not lacking in this very thesis of the more recent authors. Namely, it should have been asked beforehand whether by this pact the nature of mutuum is preserved, or whether in truth a change into another contract is made. And indeed, if he who grants his money to the free use of another wishes from this furnishing to acquire profit for himself, and profit, certainly, is wholly distinguished from compensation of damage or danger, and therefore hands over money by this pact, that he may receive at least the rate of profit prefixed by the laws, then indeed he neither does this gratis, nor intends to do it; therefore he does not make a contract of mutuum, which from its essence is gratuitous. This is no different, namely, from anyone who exacts a price for the use of a horse: he does not make a contract of commodatum; and one who exchanges a horse for a mule does not make a contract of donation. The question, therefore, will remain how profit, not indeed received from the contract of mutuum, which can in no way produce profit, but from this furnishing of money, can in some way be reconciled with the law of justice. Moreover, if for the solution of this question it is also pleasing to employ the authority of civil laws, perhaps there will be someone who thinks it must be inquired, not indeed whether legislators wished to transfer the dominion of gratuitous, that is, not deserved, profit from one to another, which there is no indication had come into their mind, since laws of this kind are very ancient, while the notion of such a transfer was devised more recently by only a few writers; but rather whether those laws, which have never been regarded as unjust, indeed have also been defended by theologians, each according to his own measure, as just, suppose that the furnishing of a thing also, as they say, fungible, of itself is not lacking a title on account of which it is appreciable by price, which therefore anyone who does not consent to furnish it from gratuitous liberality can exact without injustice; so that the laws finally merely took up this office for themselves, that they might establish an equitable measure of some profit, otherwise just, to be received from the furnishing of fungible things. And indeed, in favor of this sense of those laws is the fact that the Doctors are accustomed to invoke the sense and practice of pious men for the defense of this profit. See Schmalzgrueber, book 5, title 19, n. 146, and Reiffenstuel, the same title, n. 62. And since not only the more recent authors, as the Author discusses in the following section VI, but also the ancients had seen through such a title, perhaps it will seem superfluous to search out this new, very remote origin of some profit, escaping the eyes, when otherwise we have it inherent and present in the nature of the thing itself.

863. It is proved, first, from reason. For the title of law removes from the middle that which, with the law excluded, could taste of usury, since for this it suffices that the legislator make the cession of profit from mutuum just and legitimate. But the matter stands thus. It is proved. The legislator makes this cession just and legitimate if he can and wills to transfer the dominion of that profit from one to another. But concerning both it is plainly established ⁹.

⁹ The force of this argument perhaps can be weakened by the fact that civil law somewhere permits the measure of profit to be received from the furnishing of money to the free will of the contracting parties, and compels the payment of whatever finally has been agreed upon. Shall we dare to attribute this also to the supreme civil power, that it wills to transfer the dominion of profit however most unjust?

1. He can. For by force of high dominion the prince can, when the common good demands it, transfer some goods of subjects from one to another, or to the utility of the republic, as all admit; thus, for example, he justly requires taxes, even sometimes extraordinary ones, or a moderate furnishing of works ¹⁰. Why, therefore, when the common good requires it, should he not be able to establish a law permitting profit from mutuum? For such a disposition is of the highest utility, and indeed of moral necessity in society; since, with the circumstances especially of our times considered, commerce would flourish less, indeed would almost perish, and industry would languish, unless the furnishing of money were fostered. For without doubt all would prefer to keep their money rather than hand it over in mutuum to others without any profit. Besides, by such a law widows, wards, male servants, female servants, and others are helped, who cannot trade, and who otherwise would be compelled to consume their modest monies. Nor is distributive justice injured by such a statute ¹¹, since the law is enacted for the future, and can successively favor all. If today the burden falls upon you, tomorrow the advantage will favor you. Today to me, tomorrow to you. Hence true compensation is given in society considered generally. Therefore there is no injustice in such a law.

¹⁰ Elsewhere we have noted that the imposition of taxes or of works pertains nothing to that which is customarily called high dominion, since an imposition of this kind looks merely to an equitable distribution of those burdens which subjects are bound to undergo for the common good. Add that no one has ever attributed to this power of high dominion even this, that it can knowingly despoil certain citizens conscious of that injustice, so that it may enrich others likewise conscious of the injustice. Add finally that the supreme power, if at any time, with the necessity of the republic and the common good requiring it, it disposes of the goods of subjects, also always takes this care upon itself by due office, that it preserve all unharmed by congruent compensations. On this argument take care to consult Schmalzgrueber, book 5, title 19, nn. 11-15.

¹¹ Distributive justice in reality seems to have nothing to do with this. But what is added, that compensation is had because burden and advantage become common, is chimerical. For even if there are a certain few who are accustomed to grow rich by monies accepted and then given in mutuum, nevertheless their accumulated riches would by no means compensate the detriment of those very many who have no faculty of seeking this profit.

2. He wills. For that will of transferring the dominion of the profit is manifestly included in the very fact of the law. For the legislator wills whatever depends on his will, and is required for the necessary efficacy and honorableness of the law, if indeed he wishes to establish a law honorable and efficacious ¹². Therefore that will of transferring the dominion of the profit exists implicitly in the law itself; therefore nothing is lacking for the justice and honorableness of the law. Therefore, once the law is posited, profit received from mutuum is no longer received by force of the mutuum, nor immediately from the mutuum, but only mediately; it proceeds from the mere occasion of the mutuum, for the statute of the prince is wholly extrinsic to the mutuum.

¹² We have already said that there is nothing which persuades that legislators ever thought about transferring dominion by their own proper authority. Moreover the argument sought from this, that otherwise they would have enacted an unjust law, limps altogether, when another reason is at hand on account of which the law does not indeed make just the profit received from the furnishing of money, but finds it just.

Indeed, the law can be just and honorable independently of a transfer of dominion. For that law is universally accepted in the community, and brought into practice even by timorous men; therefore it includes a voluntary cession of their right on the part of subjects ¹³. Therefore independently of a transfer of dominion, justice is by no means injured by this law.

¹³ This reason wholly weakens the preceding argument, the whole force of which resides in this, that without the will of the legislator transferring dominion, the law would be neither honorable nor just. Moreover, this cession of one's own right on the part of the subjects also seems to have to be relegated to dreams, no less than that will of the prince transferring dominion. For certainly there will exist no voluntary cession of right unless that right is known. But what, I ask, is that right which all subjects are imagined to have ceded? Is it that others enter into some gratuitous contract with me? Is it that they give me gratis that which can be appreciable by price? Let us conclude that in all these things nothing else appears except a certain heap of ideas coherent neither with themselves nor with common principles.

864. It is proved, second, from the authority of the Holy See. For the Holy See, having been asked several times in these our times whether absolution should be denied to those who accept profit conceded by law, without any other title, has always replied: They are not to be disturbed, until the Holy See shall have defined something concerning this. Therefore it is lawful to conclude from the aforesaid responses that the opinion consonant with law is at least probable. For how could the Holy See have been able to respond, "They are not to be disturbed" ¹⁴, unless it were truly at least probable that the law is just and honorable? For if it is not probable, they ought to be disturbed. Nevertheless it must be admitted that the Sacred Congregations, by so responding, did not wish to render a definitive judgment concerning so arduous a matter. But true and solid probability suffices, so that the faithful receiving profit from mutuum according to law may be immune from sin and from the burden of restitution.

¹⁴ We have already said elsewhere that St. Alphonsus, concerning this formula, "They are not to be disturbed," and indeed with respect to this very matter, adds this gloss (book 6, n. 765): "These words signify not mere toleration, but positive permission." Moreover, as regards that response of the Apostolic See, it is most worthy of note that entirely the same response was made to the doubts both of the Bishop of Rennes by the Congregation of the Holy Office, August 18, 1830, and of the Bishop of Verona by the Sacred Penitentiary, August 14, 1831, although in the proposed questions not even a word occurred concerning the title of civil law, by force of which profit might lawfully be received. And what is of greater moment, when afterward the Bishop of Viviers proposed new doubts to the Congregation of the Holy Office on this account, namely doubts arising from this: 1. that in the question of the Bishop of Rennes no mention was made of the said title of law; and 2. that the law in France gives no right of receiving usuries, but rather supposes that the lender has a certain right to profit of this kind, and the sole reason why the law said that it was lawful to stipulate interest for mutuum alone was given by the legislators as this, that profit of this kind would be an equitable compensation for the advantage of which he deprives himself who hands over his monies to another for use; the Sacred Congregation on August 31, 1831, replied: "Provision has been made in the decrees of Wednesday, August 18, 1830, and let the decrees be given": namely referring the petitioner to that response rendered to the Bishop of Rennes, which had existed as the cause of this new doubt. From these things it is certainly sufficiently gathered that the reason why the Sacred Congregation decreed that those who receive profit from monies handed over at interest, as they say, are not to be disturbed, is not to be sought from the authority of civil law which makes profit of this kind lawful. And therefore this argument also, which is customarily employed to build up the force of a title sought from civil laws, concludes nothing of itself. See the decrees of the Sacred Congregations here mentioned below, in the note to n. 878.

Hence Bouvier rightly concludes: "The resolutions of the Holy See, although approved by the Supreme Pontiffs Pius VIII and Gregory XVI, and perfectly concordant with one another, do not contain a definitive decision of the Holy See, as is clear from their form, nature, and terms; nevertheless those who know the customary way of acting of the Roman Church ought to have persuaded themselves that the Holy See will never issue contrary decisions.... Led by all these considerations, I firmly have persuaded myself that profit rated by law from a mutuum not owed by charity is not now to be prohibited, and that timorous persons are to be wisely directed, lest from their simplicity and the excessive rigidity of the confessor they suffer detriment." Bouvier, Appendix to the Treatise on Contracts.

Besides Bouvier just cited, more commonly the more recent theologians hold this opinion, with Gousset, n. 823; Rousselot in edit., etc. Already earlier the Wurzburgenses thought thus, De Contr., n. 201; Saettler, De Contr., p. 2, c. 4; Reuter, n. 201; and many others cited by the Wurzburgenses, especially Zech, Ledesma, Tanner, Haunold, Toletus, etc.

865. Objections. Objection 1. The legislator, by force of high dominion, cannot take away the property of private persons without due compensation; but no compensation is given in the aforesaid law. Therefore, etc.

I answer 1. I distinguish the antecedent. When compensation can be made, conceded; otherwise, denied. How, therefore, is the property of things transferred in a law establishing prescription? What compensation is bestowed in that case?

I answer 2. I deny the minor. True compensation is given in this, that the law is very useful to all, even to those who pay the increase, since they can more easily find the money which they need. Besides, he who today pays interest will in turn be able to receive it tomorrow.

866. Objection 2. The prince cannot make lawful what is of itself unlawful; but usuries are unlawful by natural and divine right, since they are prohibited by both rights. Therefore....

I answer 1. I distinguish the antecedent. If the prince cannot place a condition which removes the injustice, if there is any, conceded; otherwise, denied. Moreover, that the prince can place such a condition is clear from what has been said.

I answer 2. I distinguish the minor. Usuries are prohibited by natural and divine right if they are usuries properly so called, for example, excessive, or required from the poor, or usuries without title, or proceeding from mutuum by force of the mutuum itself, conceded; otherwise, denied. For if every profit received from mutuum is prohibited by natural and divine right, how does the Holy See not know this, and decree that the faithful using the benefit of the law are not to be disturbed ¹⁵?

¹⁵ The Apostolic See in reality did not decree, as we have already noted in the preceding note, that the faithful are therefore not to be disturbed because they use the benefit of law for receiving profit; much less does it consent that profit received from mutuum is not prohibited by natural and divine right. Namely, the reason why the Apostolic See, through the organ of the Sacred Congregations, several times responded that those faithful are not to be disturbed, it itself did not state. Therefore that one thing seems capable of being gathered with certainty from these responses, which the Author also notes below at n. 869, response 3, that in the proposed cases there is a contract which is not condemned in the constitution of Benedict XIV, Vix pervenit, November 1, 1745. But the reason why this contract is not repugnant to the aforesaid constitution is permitted to be investigated by the schools in such a way that, from the response to the Bishop of Viviers, which you will find below, it shines out sufficiently that it is not necessarily to be sought in the title of civil law.

These things, moreover, are confirmed from the letter which Cardinal De Gregorio, Major Penitentiary, gave on March 7, 1835, to the Bishop of Viviers (see L'Ami de la Religion, vol. 84, pp. 433, 434), in which these things also are found: "Therefore the Sacred Penitentiary by no means wished to define the question debated by theologians concerning that title taken from the law of the prince, but only to propose a norm which confessors might safely follow toward penitents who in good faith accepted moderate profit established by the law of the prince," etc.

867. Objection 3. Money is sterile from its nature; therefore it cannot produce fruit; therefore it is not lawful to require profit from it ¹⁶.

¹⁶ To what purpose is this objection, when the justice of the profit received is owed wholly to the will of the prince transferring dominion of the profit, or to the cession of right on the part of subjects? But we have already said several times that coherence is desired in vain in all these things.

I answer. I distinguish the antecedent. Money is sterile from itself alone, let it pass; when the work or industry of man is joined to it, denied. Let merchants be consulted on this. Is not even a field of itself sterile and fruitless, unless it is cultivated?

Indeed several, especially more recent authors, not only contend that money is not sterile, but reject all the aforesaid titles founded upon a mutuum of money, as being useless, and in place of these substitute the universal title of the fecundity of money. According to them money can produce fruit. Hence they conclude concerning money that, unless it is handed over to the poor, a true mutuum is not always given. Their reasons, moreover, which seem by no means to be despised, are contained in the following heads ¹⁷.

¹⁷ Here chiefly the hinge of the controversy truly turns, whether it can and ought to be said concerning mutuum what is most manifest concerning commodatum and donation: namely, that the obligation of exacting nothing as owed from justice is not to be derived from this, that the matter of these contracts is not appreciable by price, since the matter of donation and commodatum, for example a house or a horse, can likewise be, as we all admit, the matter of sale and lease; but that the spontaneous liberality of the donor or lender, by force of the contract, renounces the right which the granting of the dominion or the use of both the house and the horse would of itself furnish for justly exacting a congruent price. Namely, it is asked whether also the contract of mutuum rejects any remuneration owed from justice for this reason only, that the lender by a contract of this kind spontaneously gives up the right of exacting the price which otherwise, the matter of the contract considered, he could justly exact.

This is the controversy which the Author also treats in this place. In it, however, perhaps it will be less pleasing to someone that the authors cited by him recall the whole matter to the question of the fecundity of money, placing a sufficient title of some profit in that alone. For this labors under this inconvenience first of all, that the solution of the question extends itself only to the furnishing of money, but not to the furnishing of the other fungible things, as is clear from those things which the Author himself soon adds in the first head of this doctrine. Then, indeed, the solution will not seem to pertain to all furnishments of money; for in the same place the reason of the solution is sought from the value of money, which does not perish when it is expended to increase the fortune of the borrower. But does not this reason vanish if you suppose, for example, that three thousand scudi are furnished to a noble citizen to be consumed in one night, with which namely, on some day of carnival, he may prepare a most sumptuous banquet for the nobility of the whole city amid the joy of dances and musical concerts? Indeed, according to those things which the Author reports in the same place, n. 4 and 5, you would already conclude that the increase of principal becomes lawful from this, that either you sell the ceasing profit which you could hope for from a partnership entered into, or to be entered into, with a merchant, or you contract a census, etc.; and these things either recall the honorableness of the aforesaid increase to a certain few cases, or rather so change the question that they transfer it to another wholly different one.

Therefore, in order to persuade that to hand over one's things, even those which are called fungible, to another for use is something so appreciable by price that by its own nature it admits compensation, and indeed one commensurable by money (St. Thomas, In 4, dist. 25, q. 3, art. 3, 0), perhaps it will seem more fitting to insist upon a principle which is both consonant with common sense and is found commonly received by the Doctors. And this principle indeed is extant in the difficulty which the Doctors commonly propose to themselves to be solved, while they strive to prove that the exaction of any usury is repugnant to natural law, and therefore intrinsically evil. Although they had an easy solution of this difficulty in the nature of a gratuitous contract, of which kind donation also is, and commodatum, to which in reality a debt of compensation from natural law is repugnant, nevertheless, as not a few expressly admit, they set it aside, lest the question seem now to be made about the name alone. See Lugo, De Iust., disp. 25, n. 17. They did not notice, namely, that this very thing could have been objected when by the mere change of the name of commodatum into lease, or of donation into sale, it is effected that for the use or full dominion of a thing granted to another a price can justly be exacted or cannot be exacted; and therefore that the matter is not merely about names, but about the diversity of contracts. From this diversity, therefore, diverse rights and diverse obligations are born from the will of the contracting parties.

The principle, then, which the Doctors, even unwillingly, held fixed, is this: that an obligation by which someone, when he hands over his thing to another to be used, binds himself to lack his own thing and the use of it, or, in other words, an obligation by which someone deprives himself of the advantage of using his own things, is appreciable by price. Thus Lugo (disp. 25, n. 18): "He who obliges himself to this, by that very fact deprives himself of something appreciable by price." And again (ibid., n. 24): "Although we admit that this obligation is appreciable by price," etc. So also Molina (De Iust., tract. 2, disp. 304, n. 5): "The use of which the lender is deprived for a time is appreciable by money." So the Salmanticenses (tr. 14, c. 3, nn. 25, 26): "It is appreciable by price to become surety in the name of another..., therefore also to lend with an obligation of not asking repayment for one year," etc. So also John Salas (De Usur., dub. 3, n. 4): "The liberty of not paying that principal for a year is something peculiar, appreciable by price.... The obligation to wait for payment seems appreciable by price." So also Becanus (De Iust. et Iur., c. 78, q. 6, n. 1): "To become surety in the name of another for one year for so great a sum is appreciable by price; therefore also to lend with an obligation of not asking repayment..., because this is more difficult than that." And lest more be gathered together without cause, let this suffice for the present, that by the consent of all the exaction of a mutuum for a spiritual thing is considered simoniacal. For how would we have simony, unless lending of itself has something which is appreciable by price? See what has been said concerning this matter above, in the note to n. 288.

And indeed the most solid firmness of this principle is shown especially by the fact that nothing could be brought forward by any of those Doctors by which he might solve this difficult knot by some probable reason. In place of all let there be Cardinal De Lugo, who, with the matter weighed most diligently, after he had to admit sincerely with Molina (tract. 2, disp. 304, n. 14) that several solutions of this difficulty devised by others are in reality ineffective, himself found nothing more solid to answer than to concede that what the lender by obligation deprives himself of, namely the advantage of using his own things, is indeed appreciable by price; but that this deprivation of advantage is compensated when the same advantage, together with the thing borrowed, is restored at its own time to the lender himself. Thus he says (disp. 25, n. 21): "This whole thing," namely the burden undertaken by the lender, that by obligation he lacks his own thing and the use of it, "is paid to equality by paying the mutuum and afterward returning as much to the lender. For if the lender, by giving 100, deprived himself of the faculty of trading and profiting with that money, afterward equal money is returned to him with the faculty of trading and profiting with it; and this faculty is equivalent to that faculty of which he previously deprived himself for a time, just as the money returned is equivalent to the money given. Therefore that whole thing is paid and compensated by returning as much to him," etc. And when he had objected to himself (ibid.) that if he had not given the money in mutuum, nor bound himself not to ask repayment this year, he would have had this year the power of profiting, and he would also have had it in the following year; but now, because he gave in mutuum with such an obligation, he will indeed have the faculty in the following year, when the mutuum is returned, but not this year; what does he answer? Finally this one thing: "It is answered that money returned in the following year with the power of using it throughout the whole following time is worth no less than the money given this year with a similar faculty would be worth." What these things are worth, learn from the example of a house, of the use of which someone deprives himself, so that he grants it to another to inhabit for a year. From the theory set forth it will be established that such an inconvenience undertaken and advantage granted to another are indeed appreciable by price; and that these things are sufficiently compensated, and the price of the lease is sufficiently repaid, since the house, and the advantage of inhabiting it, are restored to the owner after a year! To whom indeed could these things be pleasing? But neither did Molina have anything better, by which he might meet this difficulty. And when, in the place cited, he had objected to himself that it is not proved that for the use of a thing, which is appreciable by money, and of which the lender is deprived for a time, something cannot lawfully be accepted, he replies, ibid., n. 7: "To the objection I say that for the thing which is given in mutuum, an equal thing is paid not only with respect to property, but also with respect to use; for a thing of the same use is paid." And finally Sporer also was led to this, who says, tr. 6, in Decal., c. 4, n. 112: "Do you bring forward, on your part, the lack of money, the obligation of not asking repayment, the inability of using, enjoying, or taking utility meanwhile? But all these things... are adequately compensated to you by returning equivalent money with an equal faculty of using and enjoying it; for whether someone can use money for a longer or shorter time, it is not for that reason worth more." But if that most penetrating mind of Cardinal De Lugo, if before him Ludovicus Molina, were brought by their opinion into these straits, that either they had to deny that the cession of one's own thing for the use of another is appreciable by price, or had to admit this as an equal payment of that price, that the thing is restored to the owner at its own time, and finally were compelled to seize upon this last, surely poor and tottering response as though the best of all, it is very clearly evident that the first point appeared so tested and unshaken that there is nothing which can be objected against it even with the slightest appearance of any verisimilitude.

Let us conclude, therefore, that a sufficiently firm and clear principle is at hand by which, concerning the matter of the contract of mutuum, it can be decided in the same way as concerning the matter of commodatum and donation: namely, that it is not of itself that which is of no price, and for that reason cannot admit compensation without injustice; but that it is furnished gratis only for this reason, that the spontaneous liberality of the giver, by force of these contracts, renounces the right of compensation. Thus also with respect to mutuum the exclusion of any profit, for we do not call the just compensation of emerging damage or ceasing advantage, etc., profit, is to be derived solely from the nature of the contract, since by its own nature and essence it must be gratuitous.

To this matter Filliuccius speaks well, tract. 34, part 2, c. 6, n. 102: "You will say: some price can be imposed on other burdens; therefore also on the burden of lacking one's money," namely handed over in mutuum, "for so long a time. I answer that the reason is unequal, because some price can be imposed on other burdens, because it does not come from the nature of the contract; but in mutuum the lack of money and the obligation of not asking repayment before the time come from the nature of the contract." In the same way Becanus, in the place cited, replies to the objection which we reported above: "The lack of money and the obligation of not asking repayment before some time is something intrinsic to the notion of mutuum; otherwise mutuum would not differ from precarium; but MUTUUM OUGHT TO BE MADE GRATIS; therefore nothing is to be sought for this lack or obligation." Reiffenstuel uses the same argument, Ius Can., book 5, title 19, n. 21, saying: "It is clear that mutuum by its nature DEMANDS TO BE MADE GRATIS, that is, by asking nothing more by force of the mutuum than was given." And before all these, Albert the Great, in 3, dist. 37, art. 13, ad q. 1, uses this one argument several times for excluding any profit from mutuum. "It is not similar," he says, "concerning trade and mutuum, because trade is not among those things to be done gratis from natural and divine right; but MUTUUM IS AMONG THOSE THINGS TO BE DONE GRATIS from natural and divine right." And below: "An obligation cannot be brought into a pact, because it is contrary to mutuum with respect to the gratuity on account of which it must be made because of love of neighbor." And again, to question 2, when an objection of this kind is proposed, "I give you a mutuum so that you may give something to the poor," he replies: "Such a pact cannot be made, because IT IS CONTRARY TO THE GRATUITY OF MUTUUM."

The Author of the little work On Usuries, which among the opuscule works of Doctor Aquinas obtained the 73rd place in the Roman edition of the year 1570, also proposes the same doctrine altogether splendidly. For thus he says, c. 3: "Only that superabundance which proceeds from mutuum by reason of mutuum corrupts liberality and justice. It corrupts liberality, because MUTUUM OUGHT TO BE MADE GRATUITOUSLY BY THE NATURE OF MUTUUM.... Likewise it corrupts justice, because in mutuum the return of what was given is designated. And therefore where more is returned, inequality is produced." These things, indeed, the Author soon declares more clearly thus, c. 4: "By another reason we can show that in usury evil enters especially ON ACCOUNT OF THE NATURE OF THE PROPER ACT from which it enters, which is to give in mutuum. For since to give in mutuum is the proper act, from whose corruption the vice of usury is generated..., and an act of this kind IS AN ACT OF LIBERALITY AND GRATUITY..., necessarily whatever accedes to the act which takes away liberality TURNS THE ACT AWAY FROM ITS NATURE, and consequently corrupts the virtue of universal justice. Wherefore it has the notion of injury, and thus the notion of fault. But that to give one's thing in mutuum to another IS THE PROPER ACT OF LIBERALITY AND GRATUITY is clear first from the genus of the act, which is the very giving, which designates the liberality of the giver.... Wherefore in that transfer in which the act of giving properly ought to be attended to, liberality must in no way be corrupted; but an act of this kind, namely of giving, is truly attended to in the act of mutuum.... Wherefore, if some circumstance is added to an act of this kind which corrupts the liberality of giving, such an act will be evil and vicious and a sin. But such a circumstance is added whenever the giving of mutuum is made for some profit, either in hope or in fact, because that which is done for profit is not done for pure liberality. From this it follows that there is always evil and sin there, not only from the nature of the end and of its matter, but also FROM THE NATURE OF THE PROPER ACT about which it is to be done."

Thus indeed these Doctors, to whom others can easily be added, and indeed all those must be added who, distinguishing a twofold genus of contracts, of which some are gratuitous and others onerous, reckon the contract of mutuum in the former genus. But these are plainly all theologians. Moreover, if the reason excluding any profit or hope of profit from mutuum is sought wholly, in the end, from the nature of the contract, which spontaneous liberality admits; and the office and exercise of spontaneous liberality, with the obligation of charity excluded, resides in the free power of each person; then the reason easily shows itself why, just as with a house or a horse, so also in handing over to another for use a thing which they call fungible, although from liberality I can gratis renounce any just compensation, nevertheless, with the nature of the contract changed, I can exact this compensation without injustice. Others had already noted that a twofold diverse contract could be entered upon concerning this matter, whom Peter de Ancharano reports, In V Decret., title 19, c. 1, saying: "Some say that either usuries are sought from another contract than mutuum, or they are sought from the contract of mutuum. In the first case they are permitted.... In the second case, when from the contract of mutuum, they are not permitted..., and thus the divine law is understood," etc. And in the same way Alphonsus Tostatus, In c. 25 Matt., q. 181, discusses: "If for the use of a thing something is sought, either money is accepted or another thing. If another thing, it is an unnamed contract, namely I give that you may give, I do that you may do. But if money is received, it will be a contract of lease.... And therefore since mutuum ought to be gratuitous, if it is not, it ceases to be mutuum and is another contract," etc. That this opinion was approved by others is indicated thus by Cardinal Hostiensis, Summa, book V, De Usuris, section 1, where he brings forward reasons on account of which the vice of usury accedes to mutuum. "Others," he says, "give this reason: BECAUSE MUTUUM OUGHT TO BE GRATUITOUS; but from the fact that money intervenes, it passes into lease, as we noted above concerning commodatum." And very opportunely indeed he refers the reader to what was said concerning commodatum, where, book 3, De Commod., n. 2, after having given this definition of commodatum: "A gratuitous concession made of some thing for some certain use," he thus gives a similar reason for the word gratuitous: "It is therefore called gratuitous, because if a wage intervenes, it passes into lease.... But it ought to be gratuitous, just as also mandate, which is from friendship," etc. "And if a species were given, it would pass into an unnamed contract, I give that you may do...." These things clearly show how the very same work, since it is appreciable by price, and no one denies or can deny that the office of lending is appreciable by price, can be the matter both of a gratuitous contract, if it is furnished from mere liberality and gratuity, and of an onerous contract, if the wage which liberality renounces in the first contract is justly exacted and accepted in the second.

This principle, moreover, is shown by many reasons to be much more fitly applied to this matter than the principle introduced by the more recent authors concerning the fecundity of money. First, indeed, it is more universal, and therefore embraces the lending, for we shall use this word abusively or in a broader sense to designate any furnishing, even not gratuitous, of things for the use of another, not of money only, but of any fungible thing whatsoever. For otherwise no reason appears why in one case, and not in the other, the inconvenience of lacking one's thing, and the burden of not asking it back for a certain time, would be appreciable by price. Next, because this principle is more consonant with the laws of justice. For justice demands that the right and norm of compensation in contracts be taken, not indeed from the advantage which someone perhaps will receive from the thing to be acquired, but rather from the burden which the other undergoes by depriving himself of his own thing. See below, nn. 891-892. Finally, because this principle is not only more firm and certain in itself, and much more received and approved by the Doctors than that new principle concerning the fecundity of money, but also because it passes over with impunity those obscure disputes, full of trifles and troublesome with innumerable equivocations: whether money is sterile or fruitful, whether the fruit belongs to the thing or to industry, whose fruits they are, and whose is the dominion of the principal, etc., etc., etc. While these questions vex minds wearied among uncertainties, they scarcely grant a firm judgment in which conscience may rest tranquilly.

To this principle is added besides the support of St. Alphonsus, book 3, n. 760, where namely he asks whether, for the obligation to which the lender subjects himself of not asking repayment of the mutuum except after a long time, he can exact something beyond the principal, even if no inconvenience comes to him from the delay. For the most wise Author could not conceal that he wholly adheres to the affirmative opinion. Concerning it, although it is against the more common opinion, he nevertheless determines that "this opinion TRULY does not seem to lack its probability," and he seeks help from those things which we too borrowed above from Cardinal De Lugo, saying: "If the lender accepts something for such an obligation, he accepts rightly... by reason of the burden imposed on him from the pact, which burden is certainly appreciable by price, as Lugo himself admits... with others." Besides, he also uses this argument for the same matter: "For if," he says, "one who is bound to lend after a long time can lawfully exact something, as the Doctors teach more commonly..., why cannot one who is bound not to ask for his own except after a long time?" In place of this argument, another stronger one can be brought forward for our matter after the common doctrine, that it is not lawful for a mutuum to exact that the borrower give me another thing in mutuum. For if I therefore cannot exact for a mutuum that the other in turn give me a mutuum, because I would impose for the mutuum a burden appreciable by price, why will the burden which I assume toward him not likewise be appreciable by price? Moreover St. Alphonsus asserts this only concerning the obligation of not asking repayment of the mutuum for a long time, as though this special obligation were something extrinsic to mutuum. But it is manifest, as Lugo rightly observes, disp. 25, n. 19, that the obligation of not asking repayment of a mutuum for some time is intrinsic and essential to this contract, as is clear from its very definition. And if that obligation, as Lugo has it, ibid., is truly something appreciable by price, this burden appreciable by price will indeed be greater or less according as one imposes that obligation upon himself for a longer or shorter time; but since more and less do not change the nature of a thing, the assumption of a burden appreciable by price will never be absent from the lender. Therefore in reality you will never escape the difficulty unless you recur to the nature of this contract, of which, no otherwise than of commodatum and donation, it is necessarily proper that one party assume for himself a burden indeed appreciable by price, but at the same time bind himself from pure liberality to furnish it entirely gratis.

And with these principles employed, the difficulty which St. Alphonsus, in the place cited, proposes to himself to be resolved will also be better solved, namely that sought from the condemnation of proposition 42 proscribed by Alexander VII: "It is lawful for the LENDER to exact something above the principal, if he obliges himself not to ask repayment of the principal until a certain time." St. Alphonsus answers: "The said proposition was deservedly condemned, because by those too general words the waiting of any time whatsoever was comprehended, even that which is intrinsic to mutuum; but it is not prohibited that something be exacted for the obligation of waiting through an extraordinary time, which obligation is extrinsic to mutuum." But those things which we have just brought from Cardinal De Lugo clearly prove that this reason for avoiding the condemnation is less efficacious, since the nature of mutuum is in no way changed according to a diverse measure of time. On the other hand, the vice which was the very just cause of condemnation you will find only and at the same time manifestly in that word "lender." For the LENDER, as all admit, by force of the contract obliges himself to exact nothing for the mutuum. But the obligation of not asking repayment of the principal within a certain time is intrinsic and essential to the contract of mutuum, into whatever and however much time the lender by contracting finally consented. Therefore, whenever there is truly discussion of a LENDER, it can never be lawful for him to exact something above the principal, however he has bound himself not to ask repayment of the principal until whatever certain time; and therefore that proposition was deservedly struck down, which, against the nature of the contract, admitted profit repugnant to the gratuity of the contract under the pretext of time.

Again, from the fact that the obligation of not asking repayment of the principal for some certain time is intrinsic and altogether essential to the contract of mutuum, on account of which it is also distinguished from the contract of precarium, from this, I say, there arises a new and indeed peremptory and evident argument for our matter, by which the things said thus far are confirmed. And indeed by all, whether theologians or jurists, it is retained as a most firm principle that any civil obligation is appreciable by price, and therefore can be compensated by money. From this, moreover, to the questions, to use the words of Dominic Soto, De Iust. et Iur., book 6, q. 1, "whether by reason of the mutuum you can bind the borrower to cultivate your field at a just price, or to frequent your mill, or oven, or shop," they reply with unanimous opinion that it is not lawful, although otherwise they suppose, as Soto has it there, that the lender gives no damage and extorts no price, because namely he proposes to you at a just price that the field be cultivated, the mill, oven, or shop be approached. But why will these things not be lawful, where nothing unjust is exacted? And they answer unanimously: "Because that civil obligation is appreciable by money. For there is no doubt that the deprivation of liberty by its own nature is worthy of price." Thus Soto with others, following his master St. Thomas, who, using the same principle, II-II, q. 78, art. 2, ad 4, denies that for a mutuum an obligation to make a mutuum in the future can be imposed upon the borrower, because, he says, "even such an obligation can be estimated by money." And from these same things Cajetan argues, Commentary on St. Thomas, in the place cited, with respect to the proper obligation of a surety: "A surety can exact something in order that he may become surety, because by becoming surety he obliges himself civilly to pay for another, which is no less than to oblige himself to lend; and by this, because the obligation of lending can be sold, as is in the text, it follows that the obligation to pay for another can be sold, as being appreciable by money." And for this reason he denies thus that an obligation of this kind can be imposed for a mutuum: "A civil obligation is appreciable by money; and by this, with whatever conditions it may be made, he exacts by pact more than the principal, and it is usury." But does not the lender freely assume this civil obligation for himself, when, giving his money or any other thing whatever in mutuum, he binds himself not to be able to ask it back before some prefixed time? Does there not intervene, as Soto says, that deprivation of liberty which by its own nature is worthy of price? Therefore it is manifest, according to the principles most constantly admitted by all, that there underlies the contract of mutuum that matter which can likewise be the matter of an onerous contract; since by the unanimous consent of the Doctors it is worthy of price, appreciable by price, appreciable by money, and, as Cajetan after St. Thomas said, able to be sold. St. Thomas indicates this last point to us by another and very elegant reason, 4, dist. 25, q. 3, art. 3, where he asks concerning the matter of simony. "Buying," he says, "or selling consists not only in the giving and accepting of money, but of all those things whose price can be measured by coin; for in these things there is liberality, according to the Philosopher. But it is clear that liberal giving and sale, which is contrary to it, are in the same things." There you see, according to St. Thomas after Aristotle, that the same matter underlies liberality as underlies sale, namely that whose price can be measured by coin. And this indeed is most wisely said. For who would attribute the praise of liberality to him who confers a thing having absolutely no price, and therefore no utility and no advantage? Moreover no one can deny this, which Albert the Great, as we saw above, inculcates so often, that the granting of mutuum is an act of liberality and gratuity. Therefore the conclusion returns: that the matter of mutuum, as being the matter of liberality, can likewise be the matter of sale or of another onerous contract, no otherwise, namely, than the matter of donation can become, with the nature of the contract changed, the matter of sale, or exchange, or lease.

Yet someone perhaps will think that what has been said thus far is opposed by the fact that those things seem to depart far from the doctrines on account of which theologians labored so greatly, and almost toiled, in attacking cloaked usuries. And the matter is easily clear. For why were so many and such varied contracts devised in past times, except because those who credited monies, or anything else from fungible things, to another, or furnished them for use, by no means consented to this gratis, but wished to receive some profit from it? Moreover, if those things are admitted which were disputed above, it is plainly clear that they used their right. For since we contend that the title of some just profit is inherent in the work itself, and that otherwise to furnish gratis to others what can be sold for a just price, with the obligation of charity excepted, if at any time it is present, is an act of liberality to which no law binds anyone, they could by no means be prohibited from seeking and receiving some profit. Yet who is ignorant how keenly and at the same time subtly theologians commonly attacked, indeed also detested, these profits as cloaked usuries? But things which seem to depart from doctrine commonly received in Catholic schools ought never not to seem suspect.

Certainly it must not be denied that this difficulty has its force, which perhaps only those will not feel who do not know how much deference is to be given to the authority of the schools.

Nevertheless, in the first place it may be noted that these things could have been objected with stronger right when, in the past century, Scipio Maffei and others with him began to contend for the honorableness of some profit to be received from the furnishing of money, provided the nature of the contract were changed. And we know that then a very sharp battle was joined among the learned, in which surely this very grave prejudgment of authority was fighting against the views of the more recent authors. Yet history teaches that this argument did not seem to be of such strength that, on account of it, those marks would be branded upon the more recent opinion which could be expected from the common doctrine of the schools being put aside and in some way contemned. Indeed it is most well known that Benedict XIV did not refuse that opuscule works be dedicated to him in which the more recent theory was defended, and that Mastrofini, with legitimate authority consenting, was able to commit his work for the same opinion to the press in the very city of Rome; just as we all now also know that, from that age even to ours, powers have not failed this more recent doctrine, indeed greater ones have daily accrued, so that it now seems to have obtained its place among the probable opinions of the school.

Next, it must be noted that this doctrine did not come forth in the past century as altogether new. For that it had already elsewhere been heard and admitted in Catholic schools is sufficiently proved by those things which above we reported from Peter Ancharano, from Tostatus, and from Cardinal Hostiensis. Nor, moreover, does what Cardinal Hostiensis objected against it seem sufficiently efficacious: namely, that in lease, unlike what happens in the furnishing of money, the dominion of the thing is not transferred. For also in the furnishing of money, the dominion which is transferred must be understood in an entirely circumscribed sense, as we have already seen above in the note to n. 849. Then the supposition can be denied, namely, that the reason of some profit which is sought must be sought from the fruit which the borrower is going to receive from the money, as is manifest from what was said above.

Besides, whatever ways others have finally entered upon for proving the honorableness of the contract by which some profit from money furnished to others for use can justly be received, nevertheless we use, as is clear, no other principles than those which Catholic doctors unanimously approve and constantly defend. Therefore those questions would be moved wrongly against us which are accustomed to be raised concerning the abstruse and subtle theories of Mastrofini. And this one thing will finally remain to be inquired: whether the conclusion which we ourselves deduce from those principles which we too profess and defend with the Catholic schools appears more consonant with them, or in truth the opinion opposed to our conclusion. Moreover even those few things which we saw brought forward above by Cardinal De Lugo and Molina, in order that they might disentangle themselves and their theorems from the difficulties induced by those principles, which they could deny by no reason, are enough and more than enough for judgment to be made between each opinion.

Finally, this must especially be weighed, that we are now situated in a wholly different condition from the Doctors whom we must always look up to as our fathers and teachers. For it was always solemn for truly Catholic Doctors to keep their eyes fixed upon the Apostolic See, from which surely the light of all doctrine, and therefore the safest norm of thinking in all things, ought to be sought and expected. But who is ignorant that they by no means had at hand the responses of the Apostolic See which, under the Supreme Pontiffs Pius VIII and Gregory XVI, came forth through the Sacred Congregations, both of the Penitentiary and of the Holy Inquisition, from which otherwise each one can safely learn what in the present matter must be held as defined, and what is still left to be freely discussed in the schools? For would anyone indeed think that those Doctors would have attacked any profit in these matters as at least the stain of cloaked usury, if they had known that, by the judgment of the Apostolic See, those are not to be disturbed who either pursue profits of this kind, or teach that they may lawfully be sought? Therefore we neither ought nor can regard as opposed to us those who surely, if they had known what is now known to us, would themselves have thought the same things which we think.

Moreover, that each of us should confer his studies, labors, and whatever industry according to his powers for unfolding these questions, no one indeed will fail to see that this is especially consonant with the obsequium which we all owe to the Apostolic See and to its responses concerning this matter.

Namely, although it ought to be most certain and well known that the responses of the Apostolic See under the late-memorable Popes Pius VIII and Gregory XVI do not differ even the least from the doctrines which Benedict XIV had decreed in the constitution Vix pervenit to be held by all; nevertheless, if we inspect the nature of the doubts which, as we have said elsewhere, were proposed to the Apostolic See concerning this argument, we shall find that there were some to whom it happened with difficulty to reconcile these later responses with the aforesaid letters of Benedict XIV. Therefore it is exceedingly fitting to reverence and filial zeal toward the common Mother and Teacher of all that we, insofar as it is in us, dispel doubts and suspicions of this kind by proposing the most suitable reasons that we know, by which the oracles of the Apostolic See may appear consonant with themselves. But this will be able to be achieved once it is made plain that the later responses pertain not to the doctrine defined in the aforesaid letters, but to questions which Benedict XIV himself in the same letters openly professed that he did not wish to settle. For the Supreme Pontiff clearly indicates that he did not wish to settle certain questions concerning this matter, nor even to call them into examination, thus, section 2: "Nevertheless we did not request from them," the consultors, "that they render judgment concerning the contract which at the beginning had furnished the cause of the controversy." Indeed the same Pontiff, section 10, indicates thus that some contract diverse from mutuum can be established, from which some profit could lawfully be received: "In the fourth place we exhort you not to leave entrance to the inept speeches of those who say that, in this time, a question is instituted concerning usuries which is contained in name alone; since from money which is granted to another by any reason whatsoever, fruit for the most part is procured. For how false this is, and alien from the truth, we plainly perceive if we weigh that THE NATURE OF ONE CONTRACT IS ALTOGETHER DIVERSE AND SEPARATE FROM THE NATURE OF ANOTHER; AND LIKEWISE THOSE THINGS WHICH FOLLOW FROM CONTRACTS DIVERSE AMONG THEMSELVES DIFFER GREATLY AMONG THEMSELVES. In reality a most open distinction intervenes between the fruit which by lawful right is taken from money..., and the fruit which is illicitly procured from money, and therefore is decreed by the judgment of both forums to be restored." Therefore, since the Supreme Pontiff manifestly declares that it is to be derived from the diversity of contracts that fruit may be received lawfully or unlawfully from money granted, note well that he does not say loaned, and that these things are not to be referred to those which he had established beforehand concerning the titles of emerging damage or ceasing profit, etc., it is plainly inferred that there can be a contract diverse and separate from mutuum by which fruit is lawfully procured from money. Since indeed what kind of contract this is is indicated in no way either in the letters of Benedict XIV themselves or in the later responses of the Apostolic See, and therefore this is left to be investigated by the studies of the schools, surely it yields to the obsequium of each oracle that, submitting all our things to the judgment of the Apostolic See itself, and insisting upon principles more commonly received in the Catholic school, we diligently inquire what contract of this kind can be had in this matter, which may more fully satisfy both the sense of the Benedictine constitution, and the practice prescribed by the responses of the Sacred Congregations, and the reconciliation of each oracle. Whether this has in any way been obtained in the few things disputed in this note, I most willingly submit both to the judgment of the Apostolic See and to the opinion of the wiser.

But it must in no way be passed over here that, however it may seem to someone that this other principle is to be preferred to the principle laid down beforehand by others concerning the fecundity of money, namely that to grant one's money or other fungible things to the use of another for some established time is a work of itself appreciable by price, nevertheless these things pertain nothing to practice, but merely to polishing theory somewhat, so that a more fitting reason may be rendered for those things which we see approved not only by common sense and use, but also among those most wise Roman jurists. For I use the words of Cardinal De Lugo, disp. 25, n. 11: "who judged usuries," understand profit, as the word usury notes, exacted for the use granted, not for the gratuitous contract of mutuum, which iniquity surely could not have come into the mind of those most wise men, "lawful in a moderate sum, and granted actions for exacting them, and denied action for recovering them once paid." For as to practice, namely as to the measure of compensation to be rendered, the matter stands in the same way whichever principle you employ. For, with the circumstances of emerging damage or ceasing profit omitted, which, if not in the external forum, then at least in the forum of conscience, perhaps allow that it can sometimes be decided otherwise, that law which is observed in any compensation must always be said to hold. Either the measure of this profit is prefixed by the laws, and to pass beyond this will be unlawful; or the laws predefine no measure, and then one must stand by the common price, which nevertheless also in the present matter can have diverse limits of lowest, middle, and highest.

1. Mutuum, according to all, cannot be made except concerning a thing to be consumed by first use, which is proved from the nature of mutuum itself. But money is not consumed by first use, unless it is furnished to a poor person who is going to spend it for his own support. For in the handing over of money only the value is transferred, and it is the object of the contract; but value does not perish when it is expended for increasing the fortune of the borrower. Therefore....

2. Hence the contract by which money is handed over to a rich person is not a mutuum properly so called, but rather commodatum or lease, according as it is given gratis or for a price; and therefore the dominion of the money is not transferred.

3. That contract of the lease of money is lawful in itself; for a price is justly exacted for a thing which has intrinsic value. But the use of money, which is not consumed by first use, has intrinsic value, which can be appreciated by price, and in human commerce it becomes the cause of many advantages. Therefore the increase of the principal is the just price of that use.

4. Money, as is clear from the experience of merchants, produces fruit, and is multiplied of itself, independently of human industry; therefore it is not to be regarded as altogether sterile. For the same merchant, in the same circumstances and with the same degree of industry, makes a much greater profit if he can invest a much greater sum in commerce; therefore the faculty of investing money in commerce is truly appreciable by price.

5. That increase of the principal can be regarded not only as the price of value leased, but also as the price of profit sold, which was hoped for from a partnership entered into; for a commercial mutuum is assimilated to the threefold contract of partnership, concerning which below, n. 862, and of insurance both of the principal and of profit. But that threefold contract can probably be considered legitimate according to Benedict XIV, St. Lig., and others. Mastrofini, Maffei, Rossignol, Cardinal de la Luzerne, and others hold this doctrine, to whom not a few more recent authors assent.

868. Objection 4. Christ the Lord in the new law prohibited all profit from mutuum; for he said: "Give mutuum, hoping for nothing from it." Luke 6:35. Therefore....

I answer. These words certainly are not to be understood of a rigorous precept, at least with respect to all men and all cases. For in the cited chapter several things are reported which are of mere counsel, for example the following: "But give to everyone asking you; and from him who takes away what is yours, do not ask it back." Luke 6:30.

869. Objection 5. Benedict XIV, in the encyclical letter Vix pervenit, condemned as usurious every profit received from mutuum. Therefore....

I answer 1. It is not established among theologians concerning the true sense of the Benedictine constitution, as is witnessed by the controversy so much agitated about this among authors.

I answer 2. Benedict XIV reproved only profit from mutuum received by force of the mutuum, abstracting from various titles. Therefore from this constitution nothing can be deduced against profit received from some title. Add that the Pontiff openly declared that he did not wish to settle controversies agitated in the schools, for example concerning the lawfulness of the triple contract.

I answer 3. If the illustrious Pontiff had defined anything, ought it not be known by the Holy See better than by others? And if it were true, how could the Pontiffs Pius VIII and Gregory XVI have rendered an opposite decision? Would those not have to be disturbed who acted against the dogmatic constitution of the Supreme Pontiff?

870. Questions. QUESTION 1. To whom is it lawful to receive 6 per 100 by reason of commerce according to civil law?

I answer 1. It is certainly lawful for merchants lending money to other merchants, because the matter is wholly about commerce.

I answer 2. It is lawful also for merchants with respect to others who are not merchants, because the law intends to favor commerce; but it favors it by permitting merchants to receive a greater revenue from money lent.

I answer 3. If the question is about others who are not merchants with respect to merchants, it is disputed. More commonly they deny that it is lawful, and they bring forward that such is the decision of the tribunals. The reason is that the law which intends to favor merchants would rather be harmful to them if they had to pay greater interest.

Yet several, even among jurists, affirm. Their reason is: 1. because the words of the law are general: "in matter of commerce"; and it is not established what the genuine sense of those words is; 2. because it is expedient for commerce that the law be understood thus, for in this way merchants much more easily find money with greater utility to themselves and to commerce, etc. But, they say deservedly ¹⁸, not for that reason could each of the non-merchants exact 6 even from another non-merchant, on the ground that he could have lent to a merchant; for he in no way places the money in commerce; nor could he rely upon the reason of emerging damage, since the law intends only to favor commerce.

¹⁸ If it is not a mere pretext, but a merchant with whom one could contract were at hand, the question would seem to have to be solved from those things which the Author has below, n. 872.

871. QUESTION 2. Whether or to what extent is good faith required for receiving profit from mutuum under the title of civil law?

I answer 1. With respect to avoiding sin, good faith is required, which consists in the good testimony of conscience, or in a conscience formed at least from probable and solid reasons, or from the authority of theologians. Therefore the confessor himself can furnish this good faith to his penitents who ask, by teaching them concerning the controversy of theologians not easily settled, and also concerning the responses of the Holy See. This is clear both from the nature of the thing and from the responses themselves, to be reported below.

I answer 2. With respect to justice, the question of good faith is something merely indifferent. For just as, apart from the cause of prescription, a right cannot intrinsically be conferred by good faith, since the possessor in good faith can by no means be exempted from restitution, so also the right of one contracting in bad faith cannot be taken away; since bad faith cannot make a contract which is at least probably just in itself become usurious. Nor should you say that no one can enter possession with bad or doubtful faith, nor retain this possession. For where contracts are concerned, every agreement which certainly is not unjust in itself, but probably just, becomes certainly just by the consent of the parties ¹⁹. It is established besides from the response of the Holy Office to the Bishop of Nice. Thus also the Doctors Devie, Bishop of Belley, in the encyclical letter On Mutuum; Gousset, n. 822.

¹⁹ Namely, there remains only a false persuasion to be corrected; for the preceding bad faith in the case can no more compel to restitution than if someone had stolen his own thing which he had thought to belong to another.

872. QUESTION 3. Is it lawful to exceed the legal rate in mutuum by reason of emerging damage or ceasing profit?

I answer 1. Negatively with respect to the poor or others who seek a mutuum in necessity, and who would be oppressed by a greater increase, as is clear from what has been said. Yet you do not seem to be bound to grant a mutuum to them with great inconvenience to yourself ²⁰.

²⁰ Namely, if the detriment which you must undergo because of ceasing profit or emerging damage is not light, you are not bound to give a mutuum even to a poor person, because charity alone then obliges you; but charity does not oblige with grave inconvenience.

I answer 2. If money is handed over for the utility, but not the necessity, of another, it is disputed, and a twofold opinion is brought forward. The first opinion affirms, by reason of indemnity or just compensation. Thus, among others, Kenrick and Pages of Lyons, although in the matter of usury he became very well known by a reputation for severity. The second opinion denies. The reason is that compensations for damages proceeding from a pecuniary obligation can be exacted according to the legal rate. This opinion can have place if the lender compels or obliges another to accept a mutuum from him; otherwise there appears no reason why the lender should undergo, in favor of another, the detriment of emerging damage.

873. QUESTION 4. Is it lawful to receive interest from the interest itself, les intérêts des intérêts?

I answer 1. Affirmatively from civil law. But it is required: 1. that the term of the contract have elapsed by at least one year; 2. that there have been a special agreement, or judicial petition. Indeed, elapsed revenues of leases or of censuses, whether perpetual or life-rents, produce interest from the very day of petition or agreement.

I answer 2. It also seems to be affirmed for the internal forum: 1. if an agreement preceded, whether explicit or implicit, because the revenues, once the term has elapsed, are added to the capital sum; for it is entirely the same whether I leave to the debtor my money, which he already has from mutuum, or hand over another sum to him; 2. if damage comes to the creditor from the delay of payment. Gousset, Cod. Civ. commenté, art. 1154.

QUESTION 5. Is it lawful to receive the legal increase where it exceeds 5 or 6 per 100?

I answer affirmatively, if the law, after all the circumstances have been weighed, seems just, that is, if equality appears between the profit permitted by law and the value of the use of money or the dangers of the principal, etc. For no absolute rate can be established, but attention must be paid to the various circumstances of places, and also to the scarcity of money, from which its price and consequently its use increases, as in Africa, in India, etc.

874. QUESTION 6. What is to be said concerning institutions which are commonly called Savings Banks (Caisses d'épargne)?

I answer. Institutions of this kind are not only to be tolerated, but also praised, since they help widows, male servants, female servants, and the poor, while their modest money is in some way accepted in mutuum and revenue is repaid to them.

875. You will resolve: 1. They can be absolved, indeed they are to be absolved, who do not exceed the rate of civil law by reason of profit received from mutuum; since it is by no means established that they are guilty of injustice, and therefore they cannot be bound to make any restitution.

2. Therefore, although each one can defend the opposite opinion concerning profit proceeding from mutuum as speculatively more probable, nevertheless he cannot condemn the adverse opinion as contrary to Catholic doctrine, nor exact restitution, with absolution otherwise denied. Indeed he who urged a penitent to restitution would himself have to be compelled to repair the damage of the penitent; since, according to the commonly received doctrine, a confessor who rashly prescribes undue restitution is bound to repair the damage inflicted. Thus expressly and rightly Bouvier, De Contr., p. 2, c. 8, art. 4.

3. Nor are those penitents bound to restitution who accepted profit according to law with bad faith, that is, thinking that they could not receive such profit; because from the fact that they sinned by acting against conscience, it does not follow that they were guilty of injustice.

4. Penitents, from the clause added in most responses of the Sacred Congregation, must always be prepared to submit themselves to the judgment of the Holy See; but they are not necessarily to be questioned by the confessor concerning such a disposition: 1. because this is not required in the aforesaid responses; 2. because the confessor ought to presume that the penitent, as a good Catholic, is in such a disposition, unless the contrary is established. Thus Bouvier, ibid. Indeed, says Kenrick, the Holy See has already become accustomed to omit this condition, and he adds, t. 1, De Usura, n. 101: "Whenever someone is not held by consciousness of sin in this matter, nor is he in bad repute among others, nor is anyone known to complain of injustice done to himself, he does not seem to be disturbed, since he can be excused by good faith and by the common manner of acting and thinking, and otherwise scarcely any fruit is hoped for from correction; nor will he easily assent to the confessor reproving prevailing customs."

876. 5. Profit received from money lent even to a poor person who is not suffering grave necessity, and who does not rashly hope that with the help of that money he will become so rich that he can easily restore the principal with a moderate increase, is not to be condemned of injustice. For the precept of lending gratuitously then does not urge, and even then money retains utility and its own price.

6. If no profit ought to be received from money lent to a poor person for support, this happens not because money then loses its price, but because the lender by force of the precept of charity is bound to will that the money lent by him be applied to the sole support of the poor person.

7. Profit exceeding the rate of civil law is illicit and unjust, and consequently subject to restitution. Except, unless the reason of greater emerging damage or ceasing profit counsels otherwise, or also a notable advantage of the borrower follows from the mutuum ²¹. Thus commonly the more recent theologians.

²¹ This last reason will perhaps seem less firm to someone. For the fact that the borrower or buyer obtains a more or less notable advantage from money accepted, or any other thing, is not owed to the lender or seller. Otherwise even the buyer or borrower, from the notable advantage which the lender or seller is going to obtain from the price, will have a right of exacting something for himself, and of gaining.

877. 8. A fortiori double profit cannot be exacted because of another title besides the title of civil law; for example, if profit ceasing from mutuum is for you five, you cannot exact ten because of the title of law being added, because according to all, at least when ceasing profit or emerging damage does not exceed the legal rate, nothing can be accepted besides this, since this is evidently opposed to the end and intention of the law.

9. Likewise, one who accepts money in mutuum according to the rate of law cannot for that reason exact ten by relending the same money to another, because the title is lacking for accepting the five superfluous. Yet several permit bankers, who from their state frequently accept mutuum, to be able to relend something beyond the rate of law, for example, 1 per 100 by reason of labor, time, expenses, etc.; hence according to them they could accept 7 per 100, for they are considered as merchants, and as such can already accept 6 per 100. At least the custom of many places favors them. Likewise it does not seem contrary to civil or natural law of itself that someone accept money in mutuum for 3 or 4 and relend the same for 5 in 100.

10. Nothing at all can be exacted from the poor who seek mutuum from necessity, notwithstanding the title of civil law; and therefore, if any profit has been received, it must be restored ²², since civil law, which cannot destroy the obligation of natural right, is not considered to comprehend this case, and therefore neither to transfer the dominion of the profit to the borrower. See Cases, n. 890 and following.

²² It must be restored from the office of charity, but not from a debt of justice. For in the case I ought to renounce profit from charity alone.

Of the Sacred Congregation of the Holy Office, approved by the Supreme Pontiff Pius VIII on August 31, 1830, concerning the following doubts.

878. 1. Whether a confessor can in conscience deny absolution to priests who contend that the law of the prince is a sufficient title for receiving something beyond the principal without a title either of ceasing profit or of emerging damage?

2. Whether he ought to?

The response to each: They are not to be disturbed until the Holy See shall have issued a definitive decision, to which they are prepared to submit themselves; and therefore nothing stands in the way of their absolution in the Sacrament of Penance.

We pass over several other decisions of this kind, whether of the Sacred Penitentiary or of the Holy Office, both because they are sufficiently known and because they report exactly the same doctrine ²³.

²³ Yet it is useful to add here a certain petition, in which there is no question concerning the title of civil law. Thus, then, the petition of the Bishop of Rennes: The Bishop of Rennes in France explains to the Sacred Congregation of the Inquisition that there is not the same opinion among the confessors of his diocese concerning profit received from money given in mutuum to traders, so that they may grow rich.

The sense of the encyclical letter Vix pervenit is sharply disputed. From each side arguments are brought forward for defending the opinion which each one has embraced, either favoring or opposing such profit. From this arise complaints, dissensions, denial of the Sacraments to very many traders adhering to that manner of growing rich, and innumerable damages of souls.

In order to meet the damages of souls, some confessors think that they can hold a middle way between each opinion. If someone consults them concerning profit of this kind, they try to deter him from it. If the penitent perseveres in the plan of giving money in mutuum to traders and objects that the opinion favoring such mutuum has many patrons, and moreover has not been condemned by the Holy See, which has more than once been consulted concerning the matter, then those confessors require that the penitent promise that he will obey with filial obedience the judgment of the Supreme Pontiff, if it intervenes, whatever it may be; and when this promise has been obtained, they do not deny absolution, although they believe the opinion opposed to such mutuum to be more probable. If the penitent does not confess concerning profit from money thus given in mutuum, and seems to be in good faith, those confessors, even if they know from elsewhere that profit of this kind has been received by him or even is now being received, absolve him, without any interrogation made concerning the matter, when they fear that, once warned, the penitent may refuse to restore or to abstain from such profit.

Therefore the said Bishop of Rennes asks:

I. Whether he can approve the manner of acting of these latter confessors.

II. Whether he can exhort other more rigid confessors who approach him for the sake of counsel, to follow their manner of acting until the Holy See renders an express judgment concerning that question.

Wednesday, August 18, 1830.

Our Most Holy Lord, Pius VIII, Pope by divine providence, in the customary audience granted to the Reverend Father Assessor of the Holy Office, after hearing the relation of the above doubts together with the vote of the Most Eminent Lord Cardinals, General Inquisitors, responded:

To I. They are not to be disturbed.

To II. Provision has been made in the first.

The same thing is to be seen in the doubts which the Bishop of Verona proposes to the Sacred Penitentiary in the fourth place, namely in these words:

I. Whether the manner of acting of those confessors can be approved who, while they hold as more probable the opinion contrary to profit from money given in mutuum to traders, nevertheless absolve penitents receiving profit in that way so that they may grow rich, when namely these penitents, objecting that the opinion favoring profit has not been condemned by the Holy See, nevertheless promise to obey the judgment of the Supreme Pontiff if it should intervene; and similarly act when penitents receiving profit in good faith do not confess concerning it, although from elsewhere they know that they receive profit, as above, no interrogation having been made concerning the matter, when they fear that penitents, once admonished, may refuse to restore or to abstain from such profit.

II. Whether the bishop can exhort more rigid confessors who approach him for the sake of counsel to follow the manner of acting of the former confessors, until the Holy See renders an express judgment concerning that question.

It is answered:

To I. They are not to be disturbed.

To II. Provision has been made in the first.

Given at Rome, in the Sacred Penitentiary, on August 14, 1831.

Moreover, the petition of the Bishop of Viviers, insofar as it raises a doubt concerning the response made by the Congregation of the Holy Office to the question of the Bishop of Rennes, because in that question no trace appears of the title sought from the law of the prince, is as follows:

In the exposition of the Bishop of Rennes, no mention is made of the said title which certain theologians wish to be found in the law of the prince, but only of mutuum given to traders, and of the sense of the encyclical Vix pervenit concerning such mutuum made to traders.

Hence some say that the judgment of the Most Holy Pontiff Pius VIII is to be attended to in itself alone and separately from the responses given by the Most Eminent Cardinals, so that the sense of that judgment is that the opinion favoring mutuum made to traders has not been condemned by the Holy See, which has more than once been consulted concerning the matter; and therefore, if penitents promise that they will obey with filial obedience the judgment of the Supreme Pontiff if it should intervene, confessors who do not deny them absolution are not to be disturbed. Those who interpret the judgment of the Supreme Pontiff thus turn their ears away from the encyclical letters of Benedict XIV, as well as from books I and II of On the Diocesan Synod of the same Pontiff, to which several responses of the Holy See refer, from the instruction given to Father Carlo Felice on April 17, 1749, and from diverse responses given by the Apostolic See.

Others, not understanding by what way the aforesaid judgment of Pius VIII can be reconciled with the said decisions of Benedict XIV and of other Supreme Pontiffs concerning mutuum made to traders, if it is thus considered separately, think that the said judgment is not to be understood thus, but conjointly with the responses given by the Most Eminent Cardinals, to which the Supreme Pontiff seems to refer... and that the judgment is to be referred to the doubts concerning the title of the law of the prince, which title was not condemned by the Holy See....

Therefore it is asked:

I. Whether the aforesaid judgment of the Supreme Pontiff Pius VIII is to be understood as the words themselves sound, and separately from the title of the law of the prince concerning which the Most Eminent Cardinals speak in these responses, so that the question is only of mutuum made to traders.

II. Whether the title from the law of the prince, concerning which the Most Eminent Cardinals speak, is to be understood in such a way that it suffices that the law of the prince declare it lawful for each one to agree concerning profit from mutuum alone, as is done in the Civil Code of the French, without saying that it grants the right of receiving such profit.

Wednesday, August 31, 1831.

In the General Congregation of the Holy Office, after the above petitions of the Reverend Father Lord Bishop of Viviers had been proposed, the same Most Eminent and Most Reverend Lords, the Cardinals, the votes of the Lord Consultors having first been had, said:

Provision has been made in the decrees of Wednesday, August 18, 1830, and let the decrees be given.

On the same day and weekday, Our Most Holy Lord Gregory XVI, Pope by divine providence, in the audience granted to the Reverend Father Assessor of the Holy Office, approved the resolution taken by the Most Eminent Lords.

Moreover the decrees of August 18, 1830, are contained in the response related above, which the same Sacred Congregation, with Pope Pius VIII approving, had rendered to the Bishop of Rennes, and which, since it makes no mention of the title of the law of the prince, plainly appears to have been the cause of doubting.