ARTICLE IV: ON GAME

1044. • Game is a contract by which players pact among themselves that the price which they have exposed may fall to the victor. - Game is threefold: 1° industrial, which is chiefly ruled by the industry of the players, as a game of ball and of disks; 2° aleatory, which principally depends on chance; 3° mixed, which depends partly on industry, partly also on chance, as, for example, a game of cards, at least for the most part.

1045. Questions. - Query 1° Whether every species of game recounted is licit?

Resp. None of the three aforesaid games is illicit of itself, if the due conditions are observed. The reason is, because game of itself 1° is not repugnant to morals, since it is honest recreation; 2° nor to justice, since anyone can transfer the dominion of his own goods to whom and in what way he wishes.

Formerly aleatory games were prohibited to all by Canon Law, especially to Clerics; but these laws as to laymen have gone into desuetude. As to Clerics see n. 1132. 5°. Whether and what games are prohibited in the individual States, each one will easily discern from the laws of his State, which besides are merely penal.

1046. • Query 2° What are the conditions required that game be licit?

Resp. It is required 1° that the player have free administration of the things which he exposes. Hence to a son of a family who plays concerning the goods of his parents without their license, at least presumed, the sum won in game, even licit of itself, must be restored, just as from the truer opinion a son of a family also must restore what he has gained.¹ 2° That fraud and deceit be absent from the game. But those clever devices which the rule of the game and received custom allow do not constitute fraud, for example to simulate fear so that the adversary increase the wager; to inspect another's cards from this man's negligence alone. But fraud which neither the rules of the game nor received custom allow would be, for example, so to place yourself that you can see the cards; to appoint another by whom you are warned; to steal cards or mark them with signs on the back, etc. But he who uses some fraud of this kind which is not accustomed to be applied and to which the fellow player does not consent expressly or tacitly, is held not only to restore what he himself gained, but also what the other, that fraud not having been applied, would justly have gained. In doubt concerning this, let him restore as much as the greater hope of victory was worth, which the fellow player, the fraud ceasing, would have had. 3° That on each side the peril of losing be morally equal. 4° That the game be honest in itself, and not prohibited by law. 5° That coercion be absent. But one coercing, not much more skilled, licitly retains what was gained and not sought back by the vanquished. 6° That one not play in such a way with damage to the family or creditors. L. IV. 877. 880. 882.

1047. • Query 3° Whether the victor who is much more skilled in the game is held to restore, so that he knows beforehand with certainty that he will be victor?

Resp. Affirmatively, much more probably; because the equality required between the players is lacking, and therefore justice is injured. Hence the one notably more skilled must withdraw from the game, or remit some advantage to the adversary. - Thus more commonly. L. IV. 881.

Yet in practice restitution would not have to be urged if it was a question of a thing of lesser moment; or even when the adversary, sufficiently forewarned, nevertheless obstinately wished to play; because then no deception would have intervened.

1048. • Query 4° Whether the victor in a prohibited game is held to restoring, or the vanquished to paying in the same game?

Resp. to the 1st Negatively, in those States where the contract is not declared void by law, but only rescindable. L. IV. 887.

Resp. to the 2nd Negatively, where the contract is void: otherwise it is controverted. The 1st OPINION denies; because the law, by prohibiting such a game, seems by this very fact to have taken away the natural obligation of paying into punishment of the victor. - Thus Lugo.¹

The 2nd OPINION affirms, because the contract was valid by natural law, and therefore the vanquished must stand by it until he judicially seeks restitution. St. Alphonsus calls the first more probable and more common; yet the second very probable.²

1049. • Query 5° Whether players renouncing the benefit of the law are held to pay if they are vanquished?

Resp. Distinguish. That renunciation either is sworn or not sworn. If not sworn, negatively, because the renunciation, as being contrary to the common good, is null. Except if the renunciation is made after payment, because then it is a new gratuitous donation independent of the game. - If it is sworn, they are held to pay in States where the contract of game is declared only rescindable, but they will be able to seek dispensation or to seek back what was paid: but they are not held in States where it is declared void. L. IV. 891. 892. Cf. things said n. 865. 866.

Query 6° Whether the vanquished, if he has already paid, can compensate himself for what was paid?

Resp. By distinguishing, as was just said, between the States; for compensation will be licit in those where the contract is void; but in the rest it will be illicit, unless the victor refuses to return what was paid to the vanquished seeking rescission. See St. Alphonsus L. IV. 893. coll. 717.

Query 7° What if the vanquished falsely threatens that he is going to seek back in judgment what was paid, and the victor consents to settle?

Resp. More probably the settlement is valid; for whatever the victor cedes, he donates so that the vanquished may cede the right by which he truly is strong, of seeking back what was paid. L. IV. 894.

1050. • Query 8° Whether you can retain profit from a game in which either you yourself or the fellow player exposed another's money?

Resp. Negatively to both. For you yourself exposed nothing to the game by exposing what was another's; therefore the contract was unjust and you are held to restore the profit to the vanquished; but the fellow player, exposing another's thing to the game, cannot give you a right which he himself lacked. - Except if either you yourself or the fellow player exposed a deposit, with the consent at least presumed of the depositor (n. 924), or has something else which he may hand over. L. IV. 875.

Query 9° Whether the game is valid if a great sum of money is exposed at one time?

Resp. More probably affirmatively of itself, i.e. prescinding from the laws of the States where the contract is void, and provided the required conditions are observed, that is especially, if the players are able freely and fully to dispose of their own goods, without detriment to family, creditors, etc., ... because the players equally undergo peril knowingly and willingly; and therefore there is no injustice. But the aforesaid conditions easily fail; and otherwise, even if such a game were not against justice, at least it is opposed to honesty: whence a prudent confessor, by way of satisfaction, if it seems opportune, could enjoin on the penitent victor that he expend some part of the profit for pious uses. - Antoine.¹

Note. - Although game for the most part is licit in itself, and serves honest recreation, due moderation in its use is to be commended as much as possible, lest it easily decline into detestable abuses. For how great evils come from it, daily and too lamentable experience proves! For how many, alas, most miserable young men are seen, and also men of whatever condition, who, given over to game, make the loss of an entire fortune in a few days or hours, immerse their family in hardships, and themselves are rolled in every kind of disgrace! Therefore let Parish Priests and confessors strive according to their powers to turn subjects and penitents away from the madness of playing of this kind. - Thus Gousset rightly concludes.¹

1051. • To game or wager in some sense can be equated settlement (compromise), by which a doubtful matter and uncertain lawsuit is composed. If the right of another is certain, the other cannot without injustice induce him to settle; and therefore he must restore. But nothing forbids someone knowingly and willingly to cede to his own right, especially if the right has arisen from a fortuitous case, for example game, wager.¹

• Emphyteusis (a sort of fee-farm or copyhold) is a contract by which useful dominion of an immovable thing is transferred, direct dominion being retained, under the burden of an annual pension. Among us this sometimes exists under this form: fields are sometimes handed over on this condition, that within a certain space of time so many acres be made suitable for cultivation, trees having been cut down, and that the fields be surrounded with fences, and a barn and houses be erected. If for a determined time the pension is not paid, the owner by the authority of law can expose the goods of the tenant for sale, or, if there is not an abundance of them, eject him after some days, the form of law having been observed. - Often from the fruits of the fields some portion is to be paid to the owner: in this matter the faith and justice of the tenant is to be considered, lest, led by empty reasons, he conceal the truth of things. Kenr. Tr. XI. n. 145.

Feud is a contract by which, under the burden of fidelity and personal service, the useful dominion of an immovable thing is transferred, direct dominion being retained. That manner of contracting flourished in the middle age, but already began before it. Fields were handed over to soldiers by that pact that they would accompany the owner with certain services, and follow him to war. He who had obtained a feud was called a Vassal, and was not able to transfer the feud to another without the consent of the lord. Those things which were possessed immune from every burden, and by absolute right, were called allodia (freehold). All in the Federal States are judged to be of this kind. Ib. n. 146.