Point II. On Gaming

I. Notion. Gaming is a contract by which the players agree about a prize which the one conquered yields to the victor.

II. Division. Gaming is distinguished as threefold: industrial, aleatory, and mixed, according as it is ruled either by industry alone, as a ball game; or by fortune alone, as a game of dice; or partly by industry and partly by fortune, as a card game.

III. Conditions required for the justice of gaming are:

1. That the matter of the prize be a thing about which the players can freely dispose. If another's thing is exposed to be obtained by the victor, the contract is invalid (St. Alphonsus, III, 875; n. 894).

2. That equality be preserved among the players as regards hope of the prize and danger of loss. Yet a lesser prize exposed by one party can be compensated by greater skill of the other party; and lesser skill of one party can be compensated by a greater price exposed by the other party, or by other advantages granted. Moreover injustice is absent if the less skilled party freely consents to an inequality known to him; likewise if two persons play and neither knows the skill of the other, since each freely admits the danger of playing with one more skilled (St. Alphonsus, III, 881). And generally equality is not required if the party who is of worse condition consents implicitly or explicitly to the inequality.

3. That the players observe the rules of the game. Yet tricks received by usage are licit, for example: to look at cards which another through negligence presents to be looked at; to recognize cards by a sign not expressly placed, etc. But it is not permitted, for example, expressly to position oneself so that one can look at another's cards; to mark cards with a sign by which one can recognize them, etc. (St. Alphonsus, III, 882).

"The cheat is bound to restore not only that which he gained, but also what the other was going to gain justly if the fraud had been absent" (St. Alphonsus, loc. cit.).

Question 1. Is the loser bound to pay the prize, if there is question of a game prohibited by law?

Response. Sufficiently probably it is denied. "The reason is that, although the law does not remove the natural obligation, nevertheless, since it was enacted not only as a penalty of the victor but also in favor of the conquered, by giving to the conquered the right to defend himself by exception or by repetition of what was paid, it also gives an absolute right not to pay" (St. Alphonsus, III, 890). Nevertheless, if the victor has received the prize, he is not bound to return it before the sentence of a judge.

Question 2. Can one who by fraud or fear induced another to play receive and retain the prize?

Response. With St. Alphonsus against others, it seems that it must be affirmed, because fraud or fear quite probably was not the cause, but only the occasion of the damage, as it is said to have come about equally probably from misfortune and chance as from injustice. Nevertheless the one who suffered fear can rescind the contract; when this has been done, the victor is held to restitution of the prize (St. Alphonsus, III, 889). There are indeed some who think that the contract cannot be rescinded, because the one who suffered fear enjoyed the hope of gaining. But the hope of gaining cannot be held as reparation of the injustice inflicted by fraud or fear, and therefore the cause of rescinding the contract remains intact.