Question Two: On Play, Wagering, and Lottery

600. Play (jeu; spel) in the moral sense and according to itself is artificial speech or action for the recreation of the soul; thus it is a remedy against weariness of the soul, giving it rest or delight, and therefore it pertains to the virtue of temperance, as will be explained afterward, n. 1060. But in the juridical sense it is a real contract, entered into on the occasion of this, by which those playing agree concerning a certain gain or price to be handed over to the victor as a prize. Sometimes it is proposed to the victor as a prize properly so called, by way of gratuitous donation, and then equality among those playing is not required; at other times by a bilateral and onerous contract, as it were for buying the hope of gain by the danger of loss, and then equality among them is required.

One play is aleatory, or of fortune, which is ruled by fortune alone, so that the outcome depends almost wholly on chance, as in dice; another is of skill, which is ruled by talent alone or by expertise, so that the event depends chiefly on the skill and dexterity of those playing, for example, ball play, chess, skittles, marbles; another is mixed, whose outcome depends partly and almost equally on chance and partly on expertise, as many games of playing cards are.

Play, with evil circumstances excluded, is according to itself honorable, as ordered to the necessary relaxation of the soul. But if gain is principally intended or too eagerly sought, it becomes disordered; likewise also when it is exercised immoderately, in which case it easily excites vain hope and a disordered appetite of making money without proportionate labor. In these circumstances it is frequently an occasion of other sins: prodigality, idleness, drunkenness, quarrels, and others by which a man can offend against charity and piety toward himself and his own.

But that the contract of play may be just, immune from every injustice, which in the present matter is especially to be considered, it is required:

A. That those playing can and wish freely to dispose of the goods which they expose: for by play there is a transfer of dominion; therefore those who do not have perfect dominion cannot play. Therefore they cannot expose to the danger of the lot things belonging to another, or those whose administration they do not have, or money necessary for paying debts. Hence:

1. He who exposes another's money by playing: a) if he gains, per se can keep the gain, as the fruit of mere skill; b) by accident, however, if in his own goods he has nothing at all from which he can indemnify the other party in the case of adverse fortune, he can demand or accept nothing from him, for he injured equality, when he wished to oblige the other to give something, while he himself obligated himself to nothing; the same must likewise be said if, having goods, he was unwilling to oblige himself; c) but if he loses another's thing, neither can the other, by winning, retain it when he certainly knows this, but he must restore it to the owner; but then he can seek compensation from him who was defeated, provided the latter is not unequal to paying.

2. Minors, wives, and others constituted under a tutor or curator, cannot expose in play except money whose free administration they have. Hence he who has gained from them a great sum of money which they could not alienate cannot retain it, but is held to restore it. Nevertheless sons of a family can expose a moderate part of those things which they receive from their parents, because this pertains to honorable recreations; moreover, those things which they obtained by playing.

3. Religious cannot play without at least the presumed consent of the superior; otherwise they sin not only against justice but also against religion by violating the vow of poverty; indeed they play invalidly, at least if they have emitted a solemn vow, or if they dispose of the goods of the monastery against the will of the superior.

B. That play be entered into freely; otherwise true consent is not present, and therefore neither is a true contract of play. Hence:

1. He who plays with one half-drunk, half-witted, or another who is incapable of full consent, must restore the gain received from him.

2. He who was brought to play by another through grave fear, fraud, or another unjust means: a) is not held to pay the money which he lost, because he did not furnish consent altogether free and can rescind the contract; b) but if he came out the victor, he is not held to restitution, because he inflicted no injury on the other; c) but he who used fear or fraud is held to restore what he gained, at least after the other has sought rescission: for he inflicted injury on the defeated party.

C. That the laws of play be observed honorably and that all unjust means be avoided, such as frauds and illicit arts; otherwise damage is inflicted by an unjust means, and he who used it is held not only to restore the gain unjustly obtained, but moreover to repair the detriment which he inflicted on the other by depriving him of the hope of gaining.

Yet there are tricks and stratagems permitted in play as in war, or at least tolerated by rules or custom, such as feigning fear or confidence so that the other may become bolder or more timid, seeing cards visible from the negligence of the other alone, not warning him about an error, and recognizing cards from a mark which they already bear, but not from one which he himself placed while looking.

D. That moral equality be preserved among those playing in the hope of gaining and the danger of losing; otherwise there will be injustice, especially if one well skilled deceitfully hides his skill in order to draw the other to playing, or if he abuses the simplicity of another in order to draw large sums of money from him.

Equality per se is required: 1. on the part of the conditions, unless, however, one or the other freely yields in some things; 2. on the part of the price, unless again he spontaneously exposes or remits more; 3. on the part of skill, unless the more skilled person in some way compensates the inequality. Nevertheless:

a) He who, being of mature judgment, knowingly and freely willing, plays with another more skilled person cannot complain, because injury is not done to one who knows and consents.

b) If both players, with the greater skill or lack of skill of themselves unknown, wished to try fortune, the contract will have been entered into by way of wagering and is just, because on each side there is equal danger; nor is injury committed, because each in good faith consents to the damage which he can suffer from it.

It should be noted that in most regions the civil law neither approves nor acknowledges the contract of play, except perhaps for certain games which exercise the body and for moderate gain (a. 1965-67).

In other places aleatory games indeed are prohibited as dangerous or as preparing the way for frauds; or even pacts concerning them are declared void. These dispositions oblige in conscience at least after the sentence of a judge, even if the laws were merely penal. But if the law especially prohibits the organized industry of aleatory play, even without the intervention of a judge it obliges in conscience, because it represses something vicious of itself which is harmful to many, indeed to the public good.¹

¹ Cf. Belgian Penal Code, a. 305, 557, 558, and the law of 24 Oct. 1902.

601. Wagering (pari, gageure; wedding) is an aleatory consensual contract by which two or more, contending concerning the truth of an unknown matter or of an uncertain event, pledge gain to him who will have attained the truth, or promise a prize which will fall to the victor.

That contract can be lawful and just under the same conditions as play, because, just as in play, the parties are exposed to an equal hope of gain and danger of loss. Hence:

A. The immoderate custom of wagering is to be avoided, especially for a notable price, because it turns one away from labor and generates an appetite of gaining unduly without a proportionate effort, and is an occasion of manifold prodigality, disorder, and fraudulence, especially in public races. Hence St. Antoninus, Sum. Th., p. 2, tit. 1, c. 23, § 9, concerning such a custom of gaining from wagering, says: shameful gain, as serving no utility, but vanity and prodigality.

B. But that wagering may be just and immune from every injustice, setting aside that it cannot be about an illicit thing, for example, concerning him who may drink more, or may dare to fight in a duel, in which case the contract is illicit and invalid in the sense in which it was said concerning a contract under a base condition, the following conditions are required:

1. That the thing or fact be understood in the same sense by the contenders; otherwise there would not be consent to the same thing.

2. That the thing about which there is contention be uncertain with respect to the contenders, or that the event be doubtful to each; otherwise there would not be equality of hope and danger.

Hence: a) if one is truly certain concerning the event, per se he cannot lawfully wager; indeed, neither validly, because the gain is not uncertain and the danger is null; b) by accident he can, if he openly says that he is altogether certain, but the other nevertheless persists in wagering: for then the latter is judged to yield his right or to bestow something gratuitously.

3. That the prize on each side be equal, namely, proportionately to the probability of the event and to the objective means by which they can conjecture it; unless, however, one of the contracting parties spontaneously and freely offers a greater price.

In Belgium, the civil law does not vindicate the obligations and effects either of play or of wagering; it denies civil action to them, except only for moderate gains which arise from games pertaining to skill and exercise of the body. On the other hand, no one also can by civil action seek back what he spontaneously paid after play, unless fraud or malice intervened (a. 1965-67). In other words, the civil law leaves those obligations as they are from natural law; whence the obligation of paying is present unless fraud intervened, or unless someone cannot pay except by sinning.

But what if someone were to play or wager with the purpose of not fulfilling the obligations arising from it, but of using the benefit of the law if necessary? Resp.: he would injure justice in affection, but the contract would be valid, because for the value of the contract the intention of fulfilling the obligation is not required, but the intention of assuming the obligations of the contract suffices. Yet he who would be unwilling to oblige himself in any way would enter into no contract, and would also be held to restore the gain perhaps obtained.

602. Drawing lots or lottery (uitloting) is an aleatory contract by which, after a certain price has been paid, a right is acquired of obtaining some prize, if the lot favors, whether concerning one object or several; or a real contract by which, with several persons paying a price for a certain thing placed in the middle, the right to the prize is acquired if the drawing of lots falls to someone.

It is not per se illicit, in the same way as we have said concerning play and wagering, although it can offer occasion to manifold abuse; whence in several regions it is prohibited by law, or at least is permitted only with special license on account of a grave motive.²

² Cf. Belgian law of 19 Dec. 1851 and Penal Code, a. 301-304.

But that it may be immune from every injustice, it is required:

1. That in drawing the tickets or in assigning the prize to the victors, every fraud be carefully avoided: for if equality among the competitors is removed, or the proposed prizes are diminished, manifestly injustice is committed.

2. That the laws and burdens of the contract be published beforehand.

3. That there be an equal proportion between the price paid and the hope of obtaining the prize, with attention to the value of the prize and the number of competitors, so that the gain of the one instituting the lottery does not exceed the just price of an honorable business; otherwise he is held to restore the excess in the price. Unless, however, it is known to all that the lottery was instituted to promote a good work, or for the benefit of the State; in which case the lottery is nothing except an occasion of bestowing alms or of providing for the common good.