Section — Marc, Institutiones Morales
§ 1. ON THE NATURE OF LOAN FOR CONSUMPTION
- NOTIONS. Loan for consumption (pret de consommation ou simple pret) is a contract by which a thing consumptible by the first use is handed over to another, with the obligation of returning a similar thing, in its own time and in the same species and goodness.11
It is a real contract, which is perfected only by the handing over of the thing. - He who gives the loan for consumption is called the lender; he who receives it, the borrower; what is given is called the principal.
The profit which is licitly perceived from a loan for consumption is called interest or increment, commonly interesse; but what is illicitly perceived is called usury. Interest is either legal, indicated by law, or vulgar, commonly received among men, or conventional, established from contract.
(11) Cf., for ancient Law, Lugo, disp. 25; Lessius, l. 2, c. 20; for modern Law, Crolly, de Contr., P. II, disp. 9, and the various Codes: French, 1892; Italian, 1819; Austrian, 983; Spanish, 1753-1757, and Commercial Code, 388 ff.; German, 607-610.
- The object of loan for consumption is not, as in lease and loan for use, things which can be preserved, whose use therefore can be distinguished from the thing, but things consumptible by the first use, which therefore are destroyed by the use of consumption to which they are naturally ordered, for example grain, wine, etc. In these, use cannot be separated from ownership; wherefore the thing lent for consumption necessarily passes into the ownership of the borrower, as St. Thomas says (2. 2, q. 78, a. 1). Money can be computed among things consumptible by the first use, because money of itself is ordered to making exchanges; whence it is alienated by the one using it, and perishes for him, and is morally consumed by the first use (III, 754).
- PRINCIPLE. There is given a precept of charity of conceding a loan for consumption to those who are situated in necessity and will have whence to restore. For charity obliges one to assist a neighbor constituted in necessity, by conceding to him either the thing itself which he needs, or at least the use of the thing. Hence, a loan must be made even to the rich who, on account of a peculiar circumstance, for example to avoid litigation, need a loan; but not to those who ask the same in order to increase riches. The words of the Lord make for this (Matt., 5:42): From him who wishes to borrow from you, do not turn away. - The reason for the limitation is that it belongs to the nature of loan for consumption that a similar thing be returned; wherefore the contract of loan for consumption cannot have place with those who do not even have in hope whence they may return. Therefore these must be assisted by alms (see n. 488).
The precept of furnishing a loan rarely presses, on account of the very grave annoyances of recovering what was conceded by loan.
VARIOUS OBLIGATIONS arise from the contract of loan for consumption entered upon:
The lender is held to warn about a vice of the thing; otherwise he must repair damage. Likewise, he is held not to reclaim the thing before the time, unless he himself is in equal necessity. But if the time was not prefixed, it must be defined by the judgment of prudent men; otherwise, the loan would harm rather than profit the borrower (III, 754 ff.).
The borrower is held to furnish for fortuitous chance, and to return the thing in the same quantity and quality at its own time or when the lender has asked. Indeed, restitution must be made to one not asking, if it is not asked on account of forgetfulness, reverence, or distance. Yet the lender who does not ask, when he easily can, is considered to indulge a delay (III, 755).