Section — Vermeersch, Questions on Justice
§ 3. Several Explanations of Catholics Are Refuted
N.B. Concerning these two questions, diverse and not few opinions of Catholics have appeared, which we shall attempt to refute, at least indirectly, by the conclusion itself. Yet lest they make the demonstration more difficult, it is worthwhile to say precisely here what they intend and under what peculiar defects or inconveniences they labor.
Therefore, we do not mention here the opinions which we attack directly, but reserve them for the next article.
368. The severer opinion. In France, there are still some who simply reprove the present custom of lending at interest. They judge it in no way approved by the Church, since, the hardness of hearts having been perceived, she merely, in order to avert greater evils, prudently connives at and unwillingly tolerates what she is unable to prevent. Thus Rev. Dr. Jules Morel, in the work Du prêt à intérêt [On the Interest-Bearing Loan]; thus Rev. Modeste, Le prêt à intérêt, dernière forme de l’esclavage [The Interest-Bearing Loan, the Last Form of Slavery]. The same seems to have pleased Lachat, the Most Illustrious Bishop of Basel.
But, as will become manifest from the argument of the conclusion, such is the style of the Roman Curia that it indicates at least a probable rationale which today renders lending at interest honest.
369. Explanation from intention, or the system of the double contract. Although he did not invent it, Ballerini defends and extensively explains it, Moral Work, vol. 3, pt. 3, chap. 2, On Contracts in Particular, nos. 280-348, and many imitate him. As these authors opine, money can be lent in two ways: either with a liberal intention, in which case a loan for consumption would be had, which therefore is essentially gratuitous; or, the cause having been changed, by quasi-renting the money, in which case the interest is the just price of the rental. Formerly the loan for consumption was frequent, whose essential gratuitousness the Church rightly defended. Yet she did not thereby disapprove the rental of money which is practiced today.
If this doctrine had merely to be reconciled with the Scriptures and the testimonies of the Holy Fathers, perhaps it would not be repugnant “extrinsically.” For in truth, as we have seen, the precepts of Sacred Scripture are precepts of humanity, and the Holy Fathers object to nothing more in moneylenders than that, under the appearance of a benefit, they thrust the poor and afflicted into the greatest grief. But account must also be taken of the universal prohibition of the Church and of the doctrine which, for three or four centuries, became established in all the disciplines of theology. But now:
a) This explanation is openly opposed to that Catholic doctrine. For the price to be paid by the lessee—what is it formally except the price of the use of the thing leased? He, therefore, who concedes the rental of money acknowledges a price of the use of money. But that the use of money, distinct from consumption, has a price—this the doctors and jurists especially denied, and therefore they established that the loan for consumption is by its nature gratuitous.
b) Moreover, it is proved contrary to the mind of the Church. For in Roman law the loan for consumption was not essentially gratuitous. For it was permitted to join to the loan for consumption a stipulation of interest. Therefore, Ballerini himself1 is compelled to admit that the rationale of the loan for consumption handed down by him is foreign to Roman law. But how little likely it is that the Church, which nowhere defined the loan for consumption and was born and propagated in the Roman Empire, used the same word for the loan for consumption with a signification foreign to this law.
1 Place cited, no. 281.
c) Moreover, this explanation cannot stand with the decrees which reprove even disguised usury, in which certainly neither an intention of beneficence can be imagined nor is there even the name of a contract which from intention is necessarily gratuitous; nor with chapter 10, Consuluit, On Usury, where this very intention of profit is regarded as depraved; nor with the encyclical Vix pervenit, which, in proposition 5, expressly denies that, apart from the loan for consumption, other just contracts are always at hand, under the protection of which someone can licitly seek an increase. To what purpose must recourse be had to those contracts of rent (census), etc., if it would have sufficed to will to rent the money?
d) This explanation does not preserve the honor of the Church. For those who exacted usuries in a loan for consumption manifested sufficiently by that very fact that they were not led by an intention of liberality. They would merely—if a loan for consumption were essentially gratuitous from this intention—have erroneously said “loan for consumption” for “rental of money.” Therefore, as Rev. Fr. Palmieri very well observes in a note to Ballerini-Palmieri, place cited, no. 347, 3°, by so many decrees, threats, and penalties she would have raged against a slip of the tongue. And the Church would have been ignorant of what nevertheless is exceedingly frequent: that a contract, while retaining the name of that whose species it presents—for example, a sale—passes into another kind of transaction—for example, a donation—from a changed condition or intention. Thus a loan for use (commodatum), with payment established, ends in a rental; “a mandate, unless it is gratuitous, falls into another form of transaction” (§ 13 of the Institutes, On Mandate, III, 27).2
2 Therefore, Engel already observed skillfully, on bk. 5, tit. 19, no. 36, that we ought to be little solicitous about the word mutuum which perhaps the unlearned employ, provided that they will make the agreement in that better manner in which it is licit and there is an occasion for another profitable contract. And he adds this plain rationale: “Since intention ought not to serve words, but words ought to serve intention.” Gregory of Valencia had already taught the same earlier, Theological Commentaries, vol. 3, disp. 5, q. 25, pt. 2.
e) Therefore, Bossuet, proposition 6, rightly rejects every rental of money; Benedict XIV, On the Synod, place cited, no. 2, asserts that this rationale for excusing usury, alleged by Salmasius, is refuted by most heretics who nevertheless contend that usuries are licit; and Zech, diss. 1, no. 195, already presses the patrons of a similar opinion with these most grave words (we by no means, however, suppose a mind of this kind in Catholic men such as Ballerini): “It suffices . . . for refutation that a matter plain in itself is wrapped in various phrases by the patrons of this doctrine, so that they may prove that usury is never committed . . . that the question concerning usuries is therefore one merely of name, and consequently that all things which are established against usuries in Sacred Scripture, the decrees of Councils, and the volumes of the Holy Fathers3 are to be regarded as vain, empty, and ridiculous.”
3 From what has been said, it is evident that this rebuke is nevertheless somewhat excessive.
This opinion is in no way corrected by the fact that you do not call that agreement in which a stipulation of interest is made a rental of money, but call it an unnamed contract or a prestation on credit.4 For the whole matter turns upon this: Is there, apart from the intention by which the creditor is perhaps moved to stipulate, per se in the very prestation by which someone cedes money or a fungible thing to another until a certain day, something which is objectively worthy of compensation distinct from the restitution of the thing itself which was granted? All the Scholastic doctors, whose doctrine could be called Catholic, denied this; Benedict XIV denied this when, in the second conclusion of the encyclical Vix pervenit, he declared that interest received by force of the loan for consumption was contrary to the equality of what was given and received. But if you affirm that there is such a thing, then the intention of the parties alone will make the contract gratuitous or lucrative; indeed, it will not be gratuitous unless the creditor with a liberal intention forgoes the just compensation of his prestation. And because liberality is never commanded from justice, it has always been licit, consistently with justice and with force and threats excluded, to seek moderate interest.
4 Thus, for example, Villada, Cases of Conscience, vol. 2, case 5, no. 46 ff., p. 261 ff.
370. Explanation from the end of the loan. For there are some who judge that a loan for consumption of money which is consumed is indeed gratuitous per se, but not one of money which is expended profitably or usefully (prêt à la consommation, prêt à la production [loan for consumption, loan for production]).5 Therefore, these authors excuse present-day lending at interest, partly because, if the loan is sterile, an extrinsic title is usually of aid to the creditor; partly because today the loan is generally productive.6
5 The inventor of this distinction seems to have been a Parisian priest named Le Correur, who, with his name suppressed, published at Mons in Hainaut in the year 1684 a book whose title was Traité de la pratique des billets entre les négociants [Treatise on the Practice of Notes among Merchants]. Cf. Van Roey, De iusto auctario [On a Just Increase], p. 24.
6 This pleases Claude Jannet, work cited, chap. 3, II and III; nor does Rev. Dr. Funk oppose it, who places the formal rationale of the sin of usury in the abuse of superior force to extort consent. Therefore, according to the distinguished professor, there would be place for this sin equally in other agreements as in a loan for consumption.
This explanation can be accommodated sufficiently well to the statements of the Fathers; indeed, perhaps a few things can be brought forward from one or two Fathers which seem positively to favor it. Moreover, its use does not seem dangerous. For where money is granted as a loan to a rich man or businessman, an occasion is scarcely absent for another agreement—a rent contract (census) or partnership—which produces an honest profit from the money. Finally, that fruitful destination of the money lent is to be referred to the circumstances which support the true solution, as we shall see.
Nevertheless, we cannot assent to it. For it is formally contrary to the encyclical Vix pervenit, in these words: “Nor indeed, for purging this stain [of usuries], can any aid be summoned . . . from the fact that he from whom that profit is demanded solely on account of the loan for consumption is not poor, but rich; and is not going to leave the sum lent to him idle, but is going to expend it most usefully for enlarging his fortune, either by purchasing new estates or by conducting profitable business.” Moreover, it is repugnant to the principle which, with the common agreement of the Catholic school, we demonstrated in the preceding thesis: that the proper advantage of the one acquiring, that is, here of the borrower, cannot be computed in the cession of the thing.7
7 Rev. Dr. Funk frankly admits that his opinion is opposed to the encyclical Vix pervenit and to the doctrine which in the Middle Ages was handed down in the decrees of the Church and the documents of the Catholic schools. Cf. Maffei und das Zinsverbot [Maffei and the Prohibition of Interest], Quartalschrift von Tübingen, 1875, pp. 42-43.
371. Explanation from the presumption of a just extrinsic title. Today, since on the one hand the fruitful use of money is easy and on the other hand so many businesses, often lightly attempted, are subject to many vicissitudes, the presumption of an extrinsic title which can be compensated by moderate interest favors the creditor. Thus Rev. Fr. Weiss, O.P., work cited, pp. 691-694, and, most recently, Rev. Dr. Van Roey, who learnedly defended this opinion in his praised dissertation De iusto auctario [On a Just Increase]. Rev. Fr. Castelein, on the contrary, seems now to have abandoned that opinion for ours in his work Natural Right.8
8 Thesis XI. In Institutions of Moral Philosophy, pp. 404-408, he adhered rather to the explanation from presumed extrinsic titles.
This explanation seems to us stained by more than one defect.
1. First, you would attempt in vain through it to vindicate all present-day lending of money at interest as immune from the stain of injustice. We freely concede that some extrinsic title is generally available to many, indeed most, creditors, and this will be for us the beginning of the argument. Therefore, we shall not deny that a just cause for seeking interest can be presumed per se. But you would gratuitously affirm that, for example, profit ceases for all from the fact that they lend money, or even that this is established concerning all the monies of many persons. Indeed, sufficiently evident experience is rather opposed. For very many are accustomed to commit sums to bankers for a few days, while retaining the faculty of demanding them back at will; or, if they are of lesser importance, to entrust them to savings banks and thus obtain small interest. What personal consumption of these monies, which is productive, can generally exist? What extrinsic title exists in sums which can be demanded back so quickly? Moreover, in order that the title of profit ceasing truly be present, it is necessary that to the occasion of profit there be added a will or intention to profit from the money. But many who, unless they could receive a secure profit from money given as a loan, would prefer to keep their monies idle do not possess this will. Thus it happened in Belgium that, when the savings banks which are called after Raiffeisen had been established, ten million francs—one hundred times one hundred thousand—were entrusted to them, by far the greatest part of which had been kept hidden among farmers.9
9 Cf. also what Rev. Fr. H. Pesch observes concerning this matter, place cited, pp. 50-52.
Come now: if interest is sought formally on account of an extrinsic title, this must be held: presumption yields to truth.10 As often as the title fails, so often the cause, and the just interest itself, will fail.
10 Cf. already Reiffenstuel, On Usuries, no. 52; Schmalzgrueber, in the same place, no. 145.
2. Moreover, according to the varying capacity, indeed according to the very will—certain, uncertain, etc.—to profit, the hope of profit and consequently the just measure of interest will vary. Therefore, the patrons of this opinion will not easily explain how there can be a common determination of just interest and why a different one should not be established in a different case.
3. Nor does this opinion explain how, in her recent decrees, the Holy See was not solicitous concerning the reality of the title, was able to omit the question concerning the title of civil law, and admits a certain uniform rate which is not, however, to be accommodated to the conditions proper to each loan for consumption. Unless, nevertheless, they should say that the Holy See, with an inspection of the principles having been omitted, responded merely from probable opinions.
4. Finally, without cause, as will appear from the demonstration, the patrons of this tenet here abandon the common principles concerning value.
372. Explanation from civil law. But if, with others whom Gury, Moral Theology, vol. 1, nos. 863-864, seems to support, you perfect the latter explanation by invoking the title of civil law, which, on account of the common good, in order that a loan for consumption may be granted more easily, may have permitted a certain interest, we shall show by the proof itself that we are pressed by no necessity for a refuge of this kind. Moreover, it is not sufficiently established that the legislator willed, on account of the common good, to supply the defect of a just title, since the very permission of the laws can be understood as civil permission, or immunity in the external forum, made on account of the presumption of a just title and by which each person would be permitted to act according to the judgment of his own conscience. Cf. Reiffenstuel and Schmalzgrueber, place cited. And what proves that present-day legislators were moved by this consideration more than the ancients? Yet from Roman law no excuse of conscience was sought.