§ 2. On Business Dealing Prohibited to Clerics

I. Historical. Already in Book I of the Politics, Aristotle distinguished the study of acquiring and increasing goods, which pertained to domestic and political economy, or the right governance of a household and city, from business dealing whose end was formally nothing except making money. By the former kind of business dealing a supply of necessary things is procured for the household or the city, from which end its honesty already appears and the appetite itself is moderated; by the other kind, things useless to the buyer are sought so that, from exchange or sale, profit may be captured; and because the desire of the end is of itself without measure, it seems to carry with itself an appetite never satisfied. According to Aristotle's opinion, this latter is deservedly blamed, as not consonant with nature, and because in it one lies in wait for profit made from another.

Hence a distinction was made between business dealing which is called economic, because it is a part of economy or administration, and gainful business dealing, by which profit is intended.

This latter, as savoring of greed for profit, was already in the fourth century judged unworthy of clerics: "Flee a cleric who is a merchant," said St. Jerome ¹, "as a certain pest."

The frequent vices of merchants and excessive distraction from spiritual cares are other reasons why clerics ought to abstain from business dealing, to whom the passage of the Apostle is applied (2 Tim. 2, 4): "No one serving God entangles himself in secular business." Thus St. Thomas, 2, 2, q. 77, art. 4, ad 4. Concerning avocation from higher studies, cf. also Schmalzgrueber, in l. 3, t. 50, n. 6, and Cicero, De officiis, 1, 42.

Gratian in DD. 86 and 88; C. XIV, q. 4, and XXI, q. 3, reported the more ancient reprobations either of particular Councils or of the Holy Fathers; then the Decretals of Gregory IX and Book VI of the Decretals confirmed the severity. The common law, in this matter, was afterwards handed down to us by the Council of Trent, in sess. XXII, c. 1, Ref., where it established "that those things which otherwise have been copiously and salutarily sanctioned by the Supreme Pontiffs and by sacred Councils concerning the life, honesty, dress, and doctrine of clerics to be retained, and at the same time concerning luxury, banquets, dances, dice, games, and any crimes whatsoever, as well as secular business to be fled, are to be observed for the future under the same penalties, or greater ones to be imposed at the judgment of the Ordinary; nor shall an appeal suspend this execution, which pertains to the correction of morals."

But by the Constitution Decens, November 5, 1560, Pius IV assigned to the Apostolic Camera the profits illicitly made by clerical merchants. Concerning this right of its own, the Camera not rarely had to contend with the heirs of clerics. Thence, especially in the seventeenth century, in its earlier part, many cases were proposed to the Sacred Congregation of the Council, from whose responses most of the distinctions received today had their origin.

Business dealing through others, which some had admitted (1), Benedict XIV excluded by the Constitution Apostolicae servitutis, February 25, 1741; but Clement XIII, by the Constitution Cum primum, September 1, 1759, forbade clerics to act as money-changers.

Since no schemata on this matter were approved by the Vatican Council, that law persevered until the Code. The Code, silent concerning the special law of Missionaries, is content with the brief canon 142, which must be interpreted from the prior law: "Clerics are prohibited from exercising business dealing or commerce, through themselves or through others, whether for their own utility or for that of others."

¹ Ep. 52, to Nepotianus (P. L. 22, 531), which passage, assumed by Gratian, became c. 9, D. 88.

² For example, Schmalzgrueber, III, 50.

II. Interpretation of the present law. 1. Notions. Business dealing, in generic use, is every commutation of things estimable by price, made for an immediately temporal end, especially by purchase and sale. It differs from commerce, with which it is not rarely confused, insofar as commerce seeks profit from goods sold, while business dealing rather seeks profit by other arts on the occasion of goods, as for example "when someone does not carry goods either by sea or by land, but assists merchants by communication of money or things" ³.

Business dealing is distinguished as economic or simple, which is part of a rightly administered family estate, and is had when fruits gathered from one's own field are sold, or those things which are left over from things which had been purchased even broadly for one's own use, or which, bought for one's own use, are sold because the plan has changed, on account of a good opportunity of profit; or when an honest stipend for one's own labor is sought. When done for providing for the city, it is said to pertain to political science, whence some, for example Schmalzgrueber ⁴ and Wernz ⁵, designate by the name of political business dealing the purchase by which provision is made for an army or community.

Lucrative business dealing is commanded by the intention of profit. And it is strictly so called when things are bought with the plan that, morally unchanged, they afterwards be sold at a higher price. This business dealing is called gainful. Therefore it supposes an intention existing at the moment of purchase of not changing the things but selling them at a higher price; and an intention which is the cause of the purchase. Less properly so called, or artificial, is that of those who buy things for this end, that, reduced by art or industry into a more useful form, they be sold at a higher price. For example, wool is bought so that cloth made from it, barley so that beer fabricated from it, grapes so that wine pressed from them, may be sold with profit. Cf. concerning these notions St. Thomas, 2, 2, q. 77 throughout.

2. What things are forbidden. a) Every mode of any business dealing whatsoever which disgraces clerics;

b) the exercise of gainful business dealing, whether for one's own utility or another's, whether through oneself or through others. Business dealing is exercised through others when, in the name and at the risk of the cleric, it is conducted by mandataries;

c) the exercise of active exchange, by which someone gathers money for this end, that he may profit from its exchange: for it is a genus of gainful business dealing;

d) artificial business dealing exercised through others concerning purchased things.

Another's work is especially the work of workers who are hired for this end. But the work of members of a religious community is not another's, whether they are professed, novices, or postulants. Nor is the work strictly another's of those who by some title belong to the family, as are pupils who are received under the same roof for the sake of instruction or for learning an art, or who frequent the schools. Besides, the fact that a few hired workers are added to domestics will not prevent the industry from being judged morally proper to clerics.

3. What things are not forbidden. a) Economic business dealing;

b) artificial business dealing of an honest and decorous character, to which one's own industry is applied; or which, even through others, is exercised concerning the fruits, broadly accepted, of one's own field;

c) business dealing which, if separate and principal, could not indeed licitly be exercised by clerics, but which is morally honested by the principal business with which it coheres as part or accessory. Cf. examples below.

4. What must be said about political business dealing?

He who, from an intention of profit, should plan to procure things for seculars in great quantity, would certainly administer secular business; indeed, by selling things lucratively, he would truly devote himself to gainful business dealing. By this twofold reason Wernz, n. 219, can represent political business dealing as of itself forbidden. Nor do the places of ancient law which he alleges demonstrate anything else (c. 3, D. 88; c. Iss., C. XXI, q. 3). But if an end different from profit supplies a reasonable explanation, and one not alien to the clerical state, especially if it is of a higher order, procurements of this sort can easily be made honest. Thus a pastor will not be reprehended who brings it about that to the poor or to persons of slight condition certain foods or things of daily use are offered at a milder price; nor the bursar of a college who procures school furnishings for pupils; nor the rector of a place of pilgrimage who offers devotional objects for the faithful to buy; but a missionary will be praised who, supplying for the negligence of the people, by grain bought together in season, strives to meet a foreseen famine. But in the price of things, both an honest remuneration of labor, interest on the money expended, and a certain danger of loss can be computed.

Thus it happens that a sufficiently general usage has prevailed among clerics and religious of selling with some profit devotional objects set out at the entrance of the church. By that profit are compensated labor, danger of loss from things not sold, and interest on the money with which they were bought.

That from the very commutation a proper profit of the one doing business, or a commercial profit, be perceived, is of itself at least greatly to be dissuaded, on account of the danger of fraud and self-deception, lest gainful business dealing be exercised disguised under a more honest pretext.

And diligent care must be taken that clerics avoid sordid arts and beware of every mode of acting which savors of avarice or disgraces the clerical state. Wherefore, where proof of custom is lacking, approval of the Ordinary seems to be required. Wernz, l. c., demands it, and from the mind of c. 139, §3 it can be called necessary.

5. Applications or examples: a) It is not forbidden that clerics make wine from their own vineyards through hired workers and sell it; that they buy cattle to be fattened on their pastures; that they themselves, for a price, print others' books, or publish their own works through hired typographers. And again the proverb holds here: The accessory follows the principal. Wherefore they are not prevented from increasing their own pastures by a certain useful, not excessive, hired portion and fattening bought animals on them thus increased and selling them with profit; or, to improve wine, mixing purchased grapes of another with their own and thence, through hired workers, making wine for sale; erecting a workshop next to their own pastures for making cheeses, through hired workers, from the milk of their own flock; or, by buying fruitful titles, whether bank titles or of this sort, principally intending a prudent placement of money, but at the same time foreseeing and intending profit from a future sale;

b) to buy a field for working, exploiter, a metallic or coal vein is lawful; but it is not lawful for clerics to hire others' fields for selling the fruits which will be born thence, or for fattening cattle, at least if these works are performed by another's labor. Using a similar distinction, Lugo ⁶, with Molina resisting ⁷, permits beasts of burden to be bought for this end, that they be hired out. Since not the beasts themselves but only their use is ceded for a price, in reality nothing was bought for this purpose, that it be sold at a higher price.

³ St. Thomas, on Book I of the Politics, lecture VIII.

⁴ Ius can., III, 50, n. 9.

⁵ Ius Decretalium, II, n. 17.

⁶ De Iustitia, d. 25, n. 84.

⁷ De Iustitia, d. 83, and following.

6. A question of no small moment is raised concerning "titles" or securities by which someone juridically becomes a creditor or partner of an industrial or mercantile company. And by a so-called action or share someone becomes a partner, so that he comes in for a part of the profit or loss, at least for the value of the share, while by an obligation or bond he is a mere creditor of money under interest.

Can clerics acquire titles of this sort with their own money? With their own money, I say; for that which belongs to the church or to ecclesiastical patrimony must be prudently and safely placed according to the norms prescribed by the Holy See.

No one prohibits a cleric from possessing bonds; no one permits a cleric those business dealings, true or fictitious, which are accustomed to be frequent in the "Bourse," speculative dealings.

The rest is less settled. And there are those who, looking to the juridical character, permit clerics to possess no shares other than those of companies which either work coal or metallic veins, or railways, or in some way fruitfully cultivate their own lands. For all shareholders together are owners of the fields or lands from which fruits are sought, so that not even through others do they devote themselves to gainful business dealing or illicit artificial business dealing. But if the companies are commercial, or if they change bought things for the sake of profit through hired workers, then the shareholders participate in business dealing prohibited to clerics, or then they do business through others, which is prohibited by the canons.

Thus severely d'Annibale, III, 157; Wernz, t. 2, n. 219, Scholion. But already before the Roman responses of 1875 and 1885, which incline toward the milder side, several authors, such as Bouix, Revue des sciences ecclés., 1860, II, p. 430 ff.; Icard, Praelectiones iuris can., n. 325; Lauwers, De liceitate emptionis actionum industrialium et commercialium; Sanguineti, S.J., Instit. iur. eccl., n. 220, thought that under this respect no distinction had to be made either between shares and bonds, or between commercial and merely industrial companies. This opinion today has become more common. For it stand Bucceroni (II, 41); Ferreres (II, 105); Aertnys (l. 5, n. 99); Génicot (II, 49); Arregui (n. 483), among moralists; Bargilliat (I, 391); Mocchegiani (I, 1585); Maroto, Inst., n. 572, among canonists.

And these reasons persuade us of the same: a) today persons very alien to business dealings buy and sell titles of this sort and are thence held by no one to be merchants. But common estimation must be made of the greatest importance in these matters. And since shares of a company which extracts coal and of a workshop which makes paper are possessed by entirely the same genus of possession, common sense would wonder much more at that cleverness by which the one possession is proclaimed licit, the other illicit. What of the fact that companies which work coal or metals very often at the same time are accustomed to fabricate many things? b) by possession of those shares clerics are neither less esteemed, nor do they give scandal, nor are they called away from the offices of their state: therefore the reasons for the prohibition simply and commonly cease; c) and if it pleases to examine the matter subtly, Benedict XIV condemned business dealing which clerics personally known exercised through others, while here clerics as such never appear, but are possessors according to custom, or bearers, of "anonymous" titles. What of the fact that, as Rev. Fr. Maroto reports in the cited place, a prepared and already approved schema of the canon explicitly conceded to clerics that they buy "bonds or shares of industrial or commercial companies or of shares serving public utility"? Hence the solid probability at least of this opinion is remarkably confirmed, and the silence can be held for tacit approval.

The solution of itself does not vary because there is question of a company to be constituted rather than one constituted. Yet this must be permitted with more difficulty, lest there be danger of suspicion of cupidity, of base profit, or of excessive temporal solicitude.

Therefore a cleric truly exercises business dealing through others when the matter is conducted by his personal mandate, or when, as a partner infinitely bound, he is burdened in solidum with all debts; but not when by a mere transaction he commits the value represented by an anonymous title.

And when we prohibit business dealings or "speculations" concerning these titles, we by no means forbid those exchanges of titles made for seizing an opportunity of profit, or for avoiding danger of loss, which are part of the prudent management of such a patrimony.

But clerics ought to remain alien from the administration of commercial companies. In the meeting of shareholders they ought to be present and act not by themselves in person, but through upright mandataries.

On the other hand, it is also necessary that the company propose to itself no illicit or suspect end.

7. Exceptions. The prohibition itself of doing business is circumscribed by certain exceptions.

1. As d'Annibale, III, 156 (12), bears witness, "from received customs, if a cleric has succeeded his father in business of this sort together with his brothers, he is permitted to exercise it through others." If from another succession a business has fallen to a cleric which cannot be put aside without detriment, he needs permission, which within Italy and the adjacent islands the Sacred Congregation of the Council, and outside Italy the Ordinary, will be able to give.

2. When he is actually suffering want of things, honest business dealing is tolerated for his own support as much as is enough for constituting an honest patrimony. If the necessity is not present but is probably foreseen as future; or if the necessity is not his own but that of blood-relations; or if the necessity is not of life but of state, a dispensation either of the Holy See in Italy, or of the Ordinary, is required. The Ordinary can dispense, provided that: a) no other way is available; b) the genus of business dealing not disgrace the clerical state: wherefore in letters of dispensation the more honest modes are to be prescribed; c) the faculties be revocable and be considered revoked as soon as the necessity has ceased or another reason for providing for the same has appeared.

The exceptions themselves which have been made already intimate what the vicissitudes of the historical prohibition demonstrate: that the prohibition is urged more strictly when otherwise, by benefices, provision is easily made for the support of the cleric; but that it is tempered when ecclesiastical revenues are slight. Wherefore today, where the Church has been despoiled of so many temporal goods that not a few clerics of either order and religious are almost reduced to want, at the same time we must decline from excessive severity, and provision must be made cautiously that nothing suspect, nothing indecorous, nothing which edifies less, be admitted. A certain simple mode of business dealing can be more honest than a clever observance of the law which savors of greater avarice.

8. Gravity and limitation of the obligation. The prohibition made to clerics of exercising business dealing or commerce is of itself grave. And clerics or religious who exercise commerce or business dealing through themselves or through others against the prescription of c. 142 are to be restrained by the Ordinary with congruous penalties according to the gravity of the fault (c. 2380).

By the Code the special excommunication was taken away which, from the Constitution of Clement IX, Sollicitudo, June 17, 1669, confirming the Constitution of Urban VIII, punished missionaries.

Already before the Code, clerics, not missionaries, were excused from sin at least grave who only once or again, even in a great quantity, or at morally separated times, did business. Cf. d'Annibale, III, 156.

This will have to be said much more today, since the strict prohibition is only concerning business dealing not to be exercised. "But to exercise ... signifies a plurality of acts which are united morally, that is, by purpose" (Palmieri, Opus theologicum, t. IV, tr. 9, n. 463).

N.B. - From c. 542, the obligations reviewed thus far, except residence in the diocese, are, with the necessary changes, common to all religious, even those who are not tonsured.