Article — Noldin, Summa of Moral Theology
Article Second. On Game
622. Notions. 1. Game in the juridical sense is a contract by which those playing agree between themselves concerning a certain price to be handed over to the victor as a reward.
a. Game in the moral sense signifies a certain artificial operation ordered to relaxation of the mind or exercise of the body, which the virtue of eutrapelia moderates. Frequently that game is joined with game taken in the former sense.1
b. Game differs from wagering almost only in the cause on account of which the victor acquires the reward: for in wagering the reward is constituted for him who will have attained the truth; but in game the price is constituted for the happy success of the game.
c. The object of this contract is the right of playing and the hope of gaining, which those playing mutually hand over to each other.
- Games are divided: a. into aleatory, in which the event depends chiefly on chance, as in a game of dice; b. into industrial, in which the event depends chiefly on the aptitude of the player, as in a game of disks or chess; c. into mixed, in which the event depends both on chance and on the aptitude of the player, as generally in a game of cards.
1 Cf. Ballerini-Palmieri III, n. 904.
623. In order that game be a just contract, it is required:
a. That frauds and illicit arts not be employed. He who gains through frauds is bound not only to restore the gain, but also to compensate the hope of victory which the fellow-player would have had if no frauds had occurred.
Those arts are illicit which are opposed to the rules of the game, which either received custom or the common consent of players has determined. Of this kind are: deliberately to place oneself so that the other's cards can be known, to mark cards with signs, etc. But it is not illicit to use those industries which are not opposed to the rules of the game or to received custom, as to inspect the other's cards from his negligence alone, to simulate fear so that the other may become bolder, etc.
b. That among those playing there be moral equality as to the hope of gaining and the danger of losing: for if on one side there is certainty of gaining and on the other equal certainty of losing, there is no object of the contract, which is hope of gain with danger of damage. Hence if someone most skilled in a game plays with another unskilled in the game, the latter of himself is not bound to pay the reward, nor can the other accept and retain it.
He who is ignorant of the greater skill of another player is not bound to pay the price of the game if he was induced by deceit by the other to playing; but he is bound to pay it if, without deceit, he determined himself to playing only from error, even antecedent error. He who certainly knows the greater skill of the other and nevertheless plays with him must pay the reward, because he is considered to yield his own right.
c. That the contract be entered freely; therefore he who plays with a half-drunk person must restore the whole gain, because this person cannot enter a valid contract.
He who drew another to playing by fear having been struck into him must restore the gain. Although authors almost agree in this affirmation, nevertheless not all assign the same reason for the affirmation. For some obligate him to restitution because a contract entered from fear is valid indeed, but rescindable on the part of him who suffered the fear. Others obligate him because the one striking fear inflicted injury on the other and therefore must repair the whole damage which arose from the injury.1
d. That the player be able justly to alienate the thing which he exposes in the game; wherefore he commits injustice who exposes another's thing, or indeed his own thing whose administration he does not have, as can happen to children of the family, or which he cannot lose without injustice, as happens to those who cannot pay debts.
alpha. He who exposes another's thing in a game can require and retain the gain if he himself wins. The victor who gained another's thing must return it to the owner; but the loser must keep the victor harmless or, if the victor does not restore the thing to the owner, repair the damage to him.
beta. A player who does not have the means from which he could pay if he were conquered cannot require the reward, because the contract is invalid: for equality among those playing is lacking, since he who cannot pay handed over to the other a hope of gaining which is of no value.
1 Cf. Lugo, disp. 31, n. 28; Lessius, l. 2, c. 26, n. 9; St. Alphonsus, n. 880.
624. In order that game be a licit contract, it is required:
a. That the game itself be honorable both in itself and in its circumstances, that is, by reason of time, place, persons, mode, etc. If the game is dishonorable, the victor nevertheless can require and retain the reward, provided the game was just.
In order that a game be licit, it is not necessary that it be undertaken for a positively honorable end; wherefore he does not sin, not even venially, who plays either uniquely or principally to receive gain: for any indifferent action can, even with other ends passed over, be ordered without sin to that end to which it is useful.1
b. That the reward exposed not be excessive: for if a great sum of money is exposed, of itself a sin of prodigality is committed, with which per accidens other sins are customarily joined, as if the player makes himself unable to pay debts or sustain his family.
alpha. There are those who say that a game in which a great sum of money is exposed at one time is unjust;2 but since this opinion does not exceed probability, the victor cannot be obligated to return the gain, but neither can the loser be obligated to pay it.
beta. If some game is prohibited by positive law, one must distinguish: if the law prohibits and invalidates the game, the price can neither be required nor retained; but if the law merely prohibits the game, the price can be required and retained.3
1 Cf. Lugo, disp. 31, n. 4; Ballerini-Palmieri III, n. 906.
2 Among the authors who say this game is unjust, St. Francis de Sales also is counted (Philoth., part 3, n. 29). Cf. Gury I, n. 949; Ballerini-Palmieri III, l.c.
3 C.A. Section 1271 ss. declares that a prohibited game produces no obligation, which seems to have to be understood of civil obligation: for just as it denies to the victor in a game of this kind an action for requiring the reward, so in like manner it denies to the loser an action for seeking back a price already paid; likewise C.G. Section 762.