Article — Konings, Theologia Moralis
ARTICLE I: ON THE NATURE OF THE CONTRACT OF LOAN FOR CONSUMPTION
- The word loan for consumption, according to the force of the name, signifies that something from mine becomes yours and reciprocally that yours, which you have received, again becomes mine. Sometimes it is taken for the very thing handed over by loan for consumption; but sometimes, and more often, for the contract by which that thing is handed over to another for use. In this last sense it is accepted here.
Loan for consumption is usually defined as a contract by which a thing consumable by first use is handed over to another, with the obligation at the stated time of returning a thing, not indeed individually, but the same in species and goodness.
Things consumable by first use (fungibles) are those which by their nature are destroyed and consumed for assisting human necessities, as bread, wheat, wine, oil, salt, fruits, etc. Likewise money, which, although it is not consumed nor perishes in itself, nevertheless perishes for the one expending it.1
Hence loan for consumption differs from loan for use, lease, and deposit: 1° because in loan for consumption the thing ought to be consumable by first use, otherwise in the others; 2° because the thing is to be returned not in individual, but only the same in species; 3° because in loan for consumption the dominion of the thing is transferred, and not in the others; 4° and for this reason in loan for consumption the thing perishes for the receiver, in the others for the one handing over.
Moreover, the reason why in loan for consumption strictly and properly so called the dominion of the thing is transferred is that, since the borrowed thing is consumable by first use, a use of this kind would not be licit without dominion itself. Hence all expenses and perils of the thing handed over fall to the borrower, as to the true owner. (m) p. 482.
Notes to n. 928. (1) L. IV. 754. 759. Appendix annotation (m), to n. 928. p. 371. col. 1. The dominion of an individual thing which is received by mutuum is transferred to the borrower to this extent, that that very individual thing is no longer the lender's. But the lender, by force of the contract of mutuum, reserves for himself a personal action against the borrower himself for a thing the same in species and goodness. But since this action itself, as an incorporeal thing (n. 593), is the object of dominion, it follows that this transfer of dominion in mutuum is not to be accepted in that exclusive sense in which, for example, it is accepted in donation. Pruner, Mor. Th. p. 608.
- Principles. - I. There is given a strict precept of lending with respect to the poor who are in true necessity and will have that from which they may restore. The reason is that there is present a strict obligation of charity of assisting a neighbor placed in that necessity according to the rules and principles established where charity toward neighbor was treated.
More often the precept of loan is absent toward the poor, from the fact that they are not presumed to be going to have that from which they can return an equivalent. But then the precept urges of some alms to be bestowed on them. I have said: of some; because you are not bound to furnish as much alms as the poor person was asking for as a loan. For there are also others who can and are bound to help.
II. There is given a precept of granting a loan also to the rich who, on account of a peculiar circumstance, need it exceedingly; but not to those rich persons who request the same in order to increase wealth. The 1st reason is that the precept of charity binds us toward all men, even the rich, and demands that we willingly furnish this which we would wish to be furnished to ourselves in a like case, at least if we can assist them by loan without inconvenience. But the 2nd reason is that rich persons of this kind are constituted in no necessity, and therefore no precept of charity urges toward them.
- Questions. - Query 1° What are the obligations of the lender and borrower?
Resp. to the 1st. The obligations of the lender are the following:
1° He is bound to warn the borrower concerning a defect of the thing handed over, if there is any; likewise concerning imminent damage, ceasing profit, peril of principal, unless he wishes to lend gratuitously, or condone that which by the titles of emergent damage, ceasing profit, etc., he could justly have exacted; otherwise the latter does not consent and sustains an injury, which the one lending will be bound to repair. Cf. nevertheless n. 935, II.
2° He is bound not to seek back the thing before the stated time, or before a time to be defined by the judgment of prudent men, with attention to the circumstances and the end on account of which the thing was given by loan. Yet he is bound to receive the thing if it is brought before, when the time was conceded for the mere favor of the borrower.
3° He is bound of himself not to receive more than the thing lent was worth when it was given by loan, because loan for consumption of itself is a gratuitous contract, from which there exists for the borrower only the obligation of returning a thing the same in species and goodness at the due time. Thus of itself it would not be licit for a lender to exact that metallic money be returned to him for paper money, although at the time of the loan each happens to be equal in value; for it would be a burden estimable by price imposed on the borrower. Yet St. Alphonsus warns that a contract customary in some region, and usually celebrated by upright men, is not easily to be condemned.1 "But it would be plainly unjust," adds Kenrick,2 "to lend certain money-tickets which are worth less, and to exact that gold or silver be returned" (or the price of gold), "as if they were of the same value."
Resp. to the 2nd. As to the obligations of the borrower:
1° However the thing lent perhaps perishes, the borrower is not freed until the lender has received what is his, either by himself or through another designated; the reason is that the debt is not concerning the thing in individual, but in species, or if money was given as a loan, concerning the value.
2° He ought to return the thing at the appointed time and in the same physical species, measure, number, weight. But as to money, which is judged to perish only morally, it suffices (unless agreement was made concerning the same species of money to be returned) that it be restored according to the same value; because in money attention is paid rather to value than to species. (A) p. 476.
Notes to n. 930. (1) L. IV. 755. (2) Tr. XI. 80. Appendix annotation (A), to n. 930. Resp. to 2nd under 2°. p. 372. col. 1. Worthy of note is the Response which the S. Penitentiary gave on Jan. 21, 1873, to the Bishop of Como, who asked in these words: "Most Eminent and Most Reverend Lord: "Titius, in the year 1860, when this government(1) had not yet given compulsory use to paper money in the Lombard Province, lent to Sempronius at interest by note one hundred and twenty gold coins, commonly called marenghi, with these conditions given and accepted. "I. The principal will have to be restored in the same species, any other thing substituted for metallic money being excluded, and this even in the case in which some civil law might permit this substitution, namely of paper money, for extinguishing debts of whatever kind, the debtor from now renouncing the privilege which the law perhaps might grant to him. "II. If it should happen that a law of this kind be passed, and from it the creditor be forced to accept such paper money as payment, the debtor obliges himself to restore the aforesaid sum by handing over paper money, not according to its nominal or legal value, but according to its commutative value, or by handing over such a sum of paper money that from it, by exchange, the aforesaid 120 gold coins can be had; and likewise the owed interest in metallic money. "With these agreements, Sempronius gave interest according to their tenor up to this day; but now, when compelled by Titius to render the said principal, he refuses to stand by the agreements; namely, he neither wishes to pay gold money, nor to add upon the paper money as much as presently is required so that it may be equated with gold according to the difference, commonly aggio; and he brings forward this reason, that the civil law, by decreeing that paper money is to be accepted by all in place of metallic, has besides declared wholly void the preceding agreement concerning restitution of the capital sum and payment of interest to be made in metallic coins and not in paper coins. "Therefore for the direction of souls it is asked: "I. Whether the simple(3) condition attached in the note concerning restitution to be made not otherwise than in metallic money loses its force even in the forum of conscience through a subsequent civil law invalidating it? And, if affirmatively: "II. Whether Sempronius, in this case, that is, by special conditions as stipulated above,(1) can safely conform himself even in the internal forum to this civil law so very useful to himself, when this law, even in these circumstances, would have favored him in the external forum? "May Your Eminence deign, etc. "PETER, Bishop of Como. "Como, on the fourth day before the Kalends of January 1873." "The Sacred Penitentiary, having maturely considered the proposed doubts, replies: "To I. Regularly(2) affirmatively, unless peculiar circumstances obstruct, concerning which recourse must be had in particular cases, after they have been diligently set forth. "To II. With attention to the quality of the agreements, and also with attention to the tenor of the law of which there is question in the case, negatively. "A. PELLEGRINI, Regent of the S. P. "L. CAN. PEIRANO, Secretary of the S. P. "Given at Rome in the S. Penitentiary, Jan. 21, 1873."
- Query 2° Can you receive back the thing lent in the same measure and quantity, if its price increases during the time of the loan? Can you seek back more if it decreases?
Resp. 1° If when a thing is handed over by loan there is an equal doubt on each side whether at the time of restitution the thing will be worth more or less, it is licit to contract that, with the same goodness and measure observed, it ought to be returned in its own time, even if its price has greatly increased. The reason is that since on each side there was equal danger, by that very fact equality is already preserved.1
Resp. 2° The aforesaid pact is not licit of itself if it is certainly established, or is by far more probable, that at the time of payment the value is going to be increased. The reason is that thus equality is not observed, but more is exacted than is given at the time of the loan. Hence if a bushel of wheat is now worth $3.00, and is going to be worth $4.00 at the time of restitution, it is not licit to contract that the same amount be paid. Yet except unless you had determined to preserve the thing until the time of the increased price; because then more is exacted on account of ceasing profit (n. 937). Yet then the estimation of peril, or of expenses in preserving the thing, must be deducted.2
Resp. 3° If you foresee diminution of value or price, you can seek back only so much, and the borrower ought to pay so much, as the thing was worth when it was handed over by loan, because in reality you do not exact more than you gave.3
Notes to n. 931. (1) L. IV. 782. (2) Ib. et Lacroix, n. 910. (3) L. IV. 782.