Article — Konings, Theologia Moralis
ARTICLE II: ON USURY, OR ON PROFIT PERCEIVED FROM LOAN FOR CONSUMPTION
Usury, taken in a broad sense, is called every profit perceived from loan, or on occasion of it, whether with a title or without a legitimate title. But usury in the stricter sense is profit immediately proceeding from loan, that is, precisely by force of the loan and without another just title. Yet the crime of usury is not present if someone expects something for a loan, not as owed, but from mere benevolence (provided implicit usury does not underlie it), or if he exacts a thing already owed from elsewhere by justice, since thus in fact no new burden is imposed.1 - If it exceeds the limits of a just title, or is exercised toward the poor (such in reality and hope), it is called oppressive usury.
- Principles. - I. Usury perceived by force of a loan in a thing consumable by first use, as in wine, wheat, etc., ... is utterly illicit. The reason is that "in a thing" consumable by first use, "as wine, wheat, money, there is not present a use of the thing distinct from dominion, since the use of the thing is the very consumption of the thing, and therefore in loan for consumption from its nature the dominion of the thing is transferred to the borrower: therefore, if something were exacted for the use of a consumable thing, it would indeed be exacted unjustly, says St. Thomas,2 and all, because it would be exacted for a thing which does not exist," or, as Scotus says, for a thing not his own.3
II. Oppressive usury is repugnant to natural right, whether it is done toward the poor or toward the rich: 1° if it is done toward the poor, because the one lending is bound from charity to give the loan gratuitously; 2° if it is done toward the rich beyond the limits of a just title (or at least of legal rate), because justice requires that there be a proportion between this title and the profit perceived from it. This is established from various texts of Scripture. (m) p. 482.
III. Usury will not be unjust if there is present a title extrinsic to the loan, for example, emergent damage (n. 935 sq.). The reason is that then profit is not taken by force of the loan, but by reason of the extrinsic title. For it is licit for you to receive as much as you handed over; moreover, if from one hundred coins given you lose ten, in some manner you expend one hundred and ten: therefore you can receive one hundred and ten.
IV. Usurers and their cooperators are bound from Justice to restitution, since they injure commutative justice just as thieves themselves do; therefore the rules handed down in the Treatise on Restitution must be applied to them.
Notes to n. 932. (1) L. IV. 774. 777. sq. (2) 2. 2. q. 78. art. 1. (3) L. IV. 759. Pruner, Mor. Th. p. 598. 2. Appendix annotation (n), to n. 932. II. p. 372. col. 2. Oppressive usury, even with a title otherwise just, toward the poor, such in fact and in hope, injures not only charity but also justice. The reason is that, although a mutuum is owed to them from charity alone, nevertheless oppressive exaction cannot be the object of a valid contract. Pruner, Mor. Th. p. 607. 1.
- Questions. - Query 1° In doubt whether the borrower gave something beyond the principal gratuitously or not, can you retain it?
Resp. Distinguish; for you accepted either in good faith, or in doubtful faith. If the former, a doubt supervening, and after due inquiry remaining, you can retain what was accepted; if the latter, speculatively speaking you cannot, because you cannot begin possession with doubt; in practice deference must be given to that party for which there is the stronger presumption, and thus the borrower can be presumed to have donated gratuitously if he is not poor, or avaricious, or did not give impelled by fear, or from annoyance or petition of the one lending.1
Query 2° Can the lender retain what the borrower gave from fear, lest otherwise the loan be denied to him?
Resp. More probably affirmatively. The reason is that, for usury, it is required that it be given by force of pact, or as owed from justice. - Thus more commonly. St. Alphonsus in H. A. goes over to this opinion.2
- Query 3° Is it usury if you lend on this law, that the borrower buy necessaries for himself at a just price in your shop?
Resp. Affirmatively, if this is brought into pact. The reason is that a burden is imposed on the borrower and his liberty is restricted, which is illicit and unjust.3 Yet otherwise it must be said if the burden imposed is owed from elsewhere by the borrower. Thus you can propose to another that you will give him money as a loan, provided he include in a promissory note what he owed you before. Thus likewise you will be able to give money as a loan by this pact, that the other abandon an unjust lawsuit which he had instituted.
Query 4° Can an ANTIDORAL donation, or one which is made from a grateful mind, be brought into pact?
Resp. Negatively. The reason is that from pacts there necessarily arises a title of justice, but not a donation bestowed merely from a grateful mind. - St. Alphonsus4 and others commonly. Hence with him to whom you give a loan, you cannot contract that he obtain some gift for you. But nothing forbids asking that he interpose his prayers, but it is very dangerous.5
Notes to n. 934. (1) L. IV. 761. (2) Ib. 763. H. A. Tr. X. 145. (3) Ib. 780. (4) Ib. 764. (5) Ib. 779. 780.