Census and Annuities

The word census is taken both for an annual pension, and for the right to it, and for the title by which that right is created. Now a right to an annual pension can be created either by testament or by contract, and indeed by contract both gratuitous and onerous. We speak chiefly of the onerous census contract.

I. Notion. A census contract is a contract by which a right of receiving an annual pension is acquired. He who acquires the right to the pension is called the censuista; he who ought to satisfy that right is called the censuarius.

II. Division. A census contract, or at least census or pension, is divided by theologians:

1. Into reservative and consignative, or constituted. Reservative is when someone transfers ownership of his thing to another and acquires for himself, as it were reserves, the right of receiving from it a revenue or annual pension. Consignative is when someone transfers neither any direct nor useful ownership, but assigns to another, upon some thing or upon his own person, the right of receiving an annual pension from it.

2. Into real, personal, and mixed, according as it is founded on a fruitful or useful thing, on a person, or on both.

3. Into pecuniary and fructuary, according as the pension to be paid consists in money or in fruits.

4. Into perpetual, temporary, and life-long, according as the right to the pension is acquired either in perpetuity, so that it passes to heirs, or for a determined time, or for as long as the life of the censualist, the censuary, or another person will endure. Therefore note that a pension can also be bought for the benefit of another or others.

5. Into redeemable and irredeemable, according as, with the price restored or repeated, it can be removed by both or by either one; or cannot be removed by either, against the will of the other.

III. Morality. The census contract is licit. This is clear from the nature of the contract, which involves nothing other than the buying of a right to a pension. Nevertheless justice must be observed in the price, which indeed is established by legitimate authority, or is clear from common estimation, as was said concerning every buying and selling. If a pact of redeeming the census is added, let those things be applied which were said in n. 900 about buying with a pact of redeeming (St. Alphonsus, III, 839, 843-845). For the rest, consult civil law.

Forms of Contract.—The chief forms of contract are the following:

(a) gratuitous contracts, which are those that confer advantage on only one of the contractants, or those in which no payment or compensation for his acts or goods is made to one party by the other party. They include unilateral contracts, which produce obligation on one side only (e.g., a promise, gift, testament), and bilateral contracts, which produce obligation on both sides. The bilateral contracts are also known as bailments, or understandings whereby a thing or business is transferred from one person to another in trust, on condition that a return will be made to the owner, They include the following contracts: loans, in which return must be made of the identical things borrowed (commodatum), or of a thing similar in kind (mutuum); deposit, in which a thing must be returned after safekeeping (depositum); an agency, in which one conducts the business of another with the obligation of making returns, either from express contract (mandatum) or from imputed agreement (negotiorum gestio). In commodatum and mutuum the advantage is had by the bailee, in the other three by the bailor;

(b) onerous contracts of certain event, which are those that confer an advantage on both parties, and in which the thing agreed on is certain and definite. They include contracts in which one party transfers ownership to the other (e.g., buying and selling, barter, loan at interest, contracts for annuities, stocks and bonds) or useful dominion (e.g., lease of property, contractor’s agreement, hire of labor), and contracts in which both parties transfer rights to a moral person of which they are the members (partnership);

(c) onerous contracts of uncertain event, which are those that confer advantage on both parties, but in which the thing agreed on is contingent and uncertain. Examples are insurance, wager, gaming contracts, lottery, and stock market speculation;

(d) subsidiary contracts, which are those that are made in order to give security to principal contracts to which they are annexed or for whose sake they are made. Such are guaranty and surety, pledge and pawn, and mortgage.

What is a census? - A census is a contract by which someone reserves to himself or buys the right of receiving an annual pension. - The one buying is called the censualist, censitor, buyer, creditor. But the one selling is the censuary, seller, debtor. The pension itself is called the canon, or revenue, because it returns and is rendered each year. A census, as is clear, differs essentially from mutuum; for in the latter the borrower is principally debtor of the capital itself, but in the former the censuary is not debtor of the capital, but of the revenue, the right of which he has sold for the price of the capital itself. - C. I. 1778; C. H. 1604; C. L. 1644, 1645, 1706, 1707; C. G. 1909; Gousset in h. a.; L. 839.

How many kinds of census are there? - Census is manifold: 1. Reservative, by which the censualist transfers his own thing to another under a gratuitous or onerous title, e.g., he gives or sells it to another, with an annual pension reserved to himself from that thing. C. I. 1778, 1780; C. G. 530; C. H. 1607. - 2. Consignative, by which the censualist buys the right of receiving a pension from another's thing, whether movable or immovable; or from the person himself who obliges himself to provide an annual pension from his own art, commerce, or office. C. I. 1782; C. G. 1909; C. H. 1606; C. L. 1645. According to C. He. 782, 790, a land charge subjects the actual owner of the land to a payment in favor of the one having the right, for which he is answerable by the land alone. Land charges are not prescribed. Individual payments are prescribed. Hence 3. census is distinguished into real, personal, and mixed, according as it is immediately constituted in some fruitful thing, or in the labor and industry of a person, or in both, insofar as immediately and directly only the person is obliged, though for security some things of the debtor are obliged, yet when these perish, the person remains obliged. Therefore in a real census, the thing is obliged to whomever it may come, and, when the thing perishes, the census perishes, C. H. 1624, 1625; in a personal census the person is obliged, and, when the person's industry perishes, the census perishes, unless the census was constituted independently of any industry whatever, and only in the mere obligation of the person to pay. In a mixed census, when the person's industry perishes, the thing as though mortgaged is obliged, and, when the thing perishes, the person is still obliged. Cf. L. 841, 846, 847. 4.

Temporary, or perpetual, or for life, according as it is constituted for a time, e.g., for 10 years, or in perpetuity, or for the life of a man. C. I. 1779; C. G. 1910; C. A. 1284; C. H. 1802. 5. Redeemable or irredeemable, according as it can or cannot be redeemed through restitution of the capital or price. - C. B. 1105 ff.; 1199 ff.; Lugo d. 27, n. 4; E. M.

Resolutions: A censuary is not freed from paying the pension on account of accidental sterility of the land and loss of fruits. C. H. 1624. - Land subject to a census, coming into the hands of others, passes with its own real burden. Lugo, Resp. Mor., l. 6, d. 12.

Note: According to more recent laws, when revenue is the price of alienation or the condition of cession of immovables, whether under an onerous or gratuitous title, the revenue is called praedial or land revenue. Such a cession of immovables, however, transfers full ownership to the cessionary, notwithstanding any contrary clause. But revenue constituted by means of capital is called simple revenue or census. C. I. 1778, 1782; C. G. 530, 1909. Cf. C. A. 1125, 1147. - According to C. I. 1782, census properly so called is not permitted except by means of a special mortgage on a determined estate. That is to say, not every census is permitted, but a mixed or real census. Otherwise, the capital can be claimed back.

A perpetual or long-term census is numbered by Canon Law among immovable goods. Clem. Exivi de Verbor. signif.; Lugo n. 8. According to C. I. 418; C. G. 529, life or perpetual revenues which are owed by the State or by private persons are counted among movables.

Whether a reservative census is licit? - Resp. Affirmatively. The reason is that anyone selling or giving his own thing to another can reserve to himself a right to part of the fruits of that thing, provided nevertheless that, in proportion to the reservation, the price is diminished in a sale, and, in a donation, the census corresponds to the fruits of the estate. L. 839. According to C. L. 1707, a reservative census is prohibited.

Whether a real consignative census is licit? - Resp. Affirmatively. For anyone, by the admission of all, can give to another the right of receiving an annual pension from his own fruitful thing; therefore he can also sell this right. Nor does it matter that in the course of time the pensions to be received exceed the price paid; this also happens in the sale of a fruitful thing, and yet it is not illicit. Hence a real census is licit, whether perpetual or temporary. For if due equality is preserved between the price and the perpetual or temporary right of pension, no injustice indeed appears. That is had as a just price for which, in the place of the contract, censuses of this kind are customarily sold and bought. C. Regimini, l. 2, de Empt. et vend., Extr. comm.; L. 839; E. M.

Whether a personal consignative census is licit? - By natural law: "The first opinion denies it ... because a person cannot be sold.... The second opinion, more common and more probable, teaches that it is licit ... because if each person can hire out his services, he can also sell them. But in such a contract the person is not properly bought, but improperly; for properly the right over the industry of the person is bought." L. 840. By Canon Law, where this has force, this census is prohibited by the Bull of St. Pius V Cum onus, 1568. L. 840, 846, 848. "But the Bull of St. Pius V," says St. Alphonsus, 849, "has not been received in the two kingdoms of Sicily, nor has it been received in Spain, nor in Belgium, nor in Germany, nor in France, nor is it observed even at Rome." Cf. Collectan. S. C. de P. F. 2132. According to C. I. 1628; C. G. 1780, no one can oblige his services except for a time, or for a determined business. - Benedict XIV, de Syn., l. 10, c. 5.

Whether a life census is licit? Resp. Affirmatively. For it is an aleatory contract, in which both the censualist and the censuary expose themselves to equal risk: the former of receiving more or less, the latter of paying less or more. Moreover, civil law approves it both under an onerous title, for money, or for a movable thing, or for an immovable thing, and under the gratuitous title of a donation inter vivos or of a testament. C. I. 1789 ff.; C. G. 1910, 1968, 1969. That it is licit is also drawn from Canon Law, Clem. Monasteriorum de Reb. Eccl. non alien. But to establish the just price of a life census, if the question concerns a life census from an onerous title, account must be taken of age and health, as well as of the danger to which someone is exposed by his manner of living, art, or office. Ordinarily they say that 15 per 100 can be demanded. A life census is distinguished from an ordinary census in this: that in the latter, when the censualist has died, the right to the canon remains in the heir; but in the former no right to the canon remains after the censualist has died. L. 844; C. A. 1285; C. H. 1802, 1803.

A life census is null unless the one for whom it is stipulated is alive, C. I. 1795; C. G. 1974. And if he for whom the life census was stipulated dies immediately, according to C. I. the contract is not invalidated. According to C. G. 1975, it is otherwise if the person, when the contract was made, was suffering from that illness by which afterward he died within the space of twenty days.

According to C. G. 1976 and according to C. I., by whatever price it has been constituted, it is valid. According to C. B. 761, the contract of a life revenue cannot be valid unless it is established in writing. C. G. 1969; C. I. 1790: if a life census is constituted under a gratuitous title, by donation or testament, it must be made in legal form.

Whether a redeemable real census is licit? - Resp. Affirmatively by natural law, whether on the part of the censuary, or even on the part of the censualist. For in census there is a true sale, in which redemption is also licit on either side. - By Canon Law, according to the cited Bull of St. Pius V, it is always indeed permitted to the censuary that he be able to redeem the census, after giving notice for two months; but not to the censualist. According to C. I. 1783; C. H. 1608; C. L. 1648, census is redeemable by its essence; according to C. G. 1911, perpetual census is essentially redeemable. But the census cannot be redeemed by the censualist so long as the censuary observes the agreements. C. I. 1783, 1785 ff.; C. G. 530, 1911 ff. On the contrary, it can be redeemed by the censuary at any time. C. I. 1783; C. G. 530, 1911; and a pact that he cannot redeem the census is null. C. I. 1783; C. G. 530. Nevertheless it can be agreed that it not be redeemed as long as the censualist lives, or before a certain time which in reservative or land censuses cannot exceed thirty years, and in consignative censuses cannot exceed ten years, or only after the censualist has been forewarned beforehand at a legitimate time. C. I. 1783; C. G. 530, 1911. Cf. C. H. 1608, 1609, 1658, 1662; C. L. 1648.

But a life census is irredeemable, both on the part of the creditor, if the debtor has been in delay in paying, and on the part of the debtor, if by chance he has begun to be burdened by it beyond equity. Yet the creditor will be able to rescind the contract if the debtor has not furnished the promised securities for execution. C. I. 1785, 1796-1798; C. G. 1912, 1971, 1977, 1978, 1979. Cf. C. H. 1805; L. 843, 847.

Whether an irredeemable or perpetual real census is licit? - Resp. Affirmatively by natural law. For as a right of pension or revenue of this kind is acquired by a certain thing or sum of money, with which the seller will be able to trade, buy a field, a house, etc., and so gain profit indefinitely, so also those pensions or revenues are to be received indefinitely. And if due proportion of price is preserved in the contract, they can well be equivalent, as to the utility and emolument to be received therefrom, to the thing or sum of money handed over as the price. But in sale and purchase, equality must be preserved precisely in this, between the price and the merchandise, namely as to the utility and emolument to be received on each side, with attention to law, custom, and common estimation. Tambur., de Contr., tr. 2, c. 2, § 3, n. 3; Lugo d. 27, n. 20, 158. The S. C. de P. F., Feb. 20, 1819, Collect. n. 2129, declared licit a perpetual census irredeemable on the part of the buyer, but redeemable on the part of the seller.

Whether a redeemable personal census is licit? Resp. Affirmatively, whether on the part of the seller or on the part of the buyer. For as a real census rests upon a thing, so a personal census rests upon the industry of a person. But the industry of a person can be sold as a thing. Therefore, as a redeemable real census is licit, so also a redeemable personal census is licit, if due proportion is preserved for the burden imposed. - Benedict XIV, de Syn., l. 10, c. 5, n. 4, 5; L. 840, 843.

Whether it is licit to buy the right of an annual pension by the mere transfer of ownership of money, without that right being constituted in some fruitful movable or immovable thing, or in some determined industry of a person? - Resp. Affirmatively. It is established 1. from the almost universal practice of God-fearing men themselves. For annual pensions are everywhere bought with money, like other merchandise, whether for a time or for one's whole life, and no scruple is raised about this matter. 2. For a census of this kind, merely pecuniary, is a most true sale, which certainly is licit: for on one side that right of an annual pension is appreciable by a price; on the other side money, the ownership of which is transferred absolutely, and not with the burden of restoring the same amount as in mutuum, is truly the price of that right. C. I. 1778; C. G. 1909.

Note: This merely pecuniary census has this proper to itself, that it is constituted in no fruitful thing, but is a most true sale, and consequently, although the censuary loses the capital of money received, nevertheless he is always bound to pay the constituted census. The same would have place if someone, in place of money as the price of the right to that pension, were to hand over a movable or immovable thing, without consigning the right of that pension in it and attaching it to it. Such a contract, by its proper name in the new Law, is called the constitution of revenue. And indeed C. I. 1778 ff. and C. G. 530, 1909 ff., 1968 ff., seem to recognize not properly census, but this constitution of revenue. Annual revenues constituted in government securities can be brought back to censuses, namely when money is placed in public loans, in public debt; likewise monetary or banking, commercial, and industrial shares, whose sale and purchase is licit as that of other things; and the price, as of other merchandise, has increase and decrease from day to day. Hence it is licit to buy at the current price annual censuses constituted in the Government, or shares from a public banker. For they are sold and bought as ordinary merchandise, and their price increases or decreases according to the common estimation of men judging that there is greater or lesser danger in them.

What conditions are required for the licit constitution of census? - "By natural law only two conditions are desired: 1. That there be equality between the census and the price. 2. That pacts added beyond the nature of census be justly compensated." L. 845. By Canon Law several conditions are required, but by almost universal custom derogation has been made from them. L. 845-849. But we have already enumerated the principal dispositions of civil law. Since census is a true sale and purchase, those conditions and modifications can be added to the contract of census which are not repugnant to sale and purchase. The price likewise, as in buying and selling, can vary according to the various circumstances of things. Tambur., de Contr., tr. 2, c. 4, n. 1, 2; Lugo, Resp. Mor., l. 6, d. 15.

Whether a life census runs divisibly with time; or whether it is owed only after the constituted time, for example after a year has elapsed, so that, if the censualist dies beforehand, the censuary is not bound to pay the pension to the heirs in proportion to the elapsed time? Resp. Affirmatively. For a life census is for the food and pension of life; for one placing his money wishes to live from the pension. Therefore it is equitable that the pension run in proportion to the life which must be sustained, and is sustained from the day of the constituted census. Therefore the censualist dying has acquired a right to the pension for the preceding time; moreover the right then acquired by him, when he dies, passes to the heirs. Wherefore a pension also assigned to a cleric, for food and the sustenance of life, although it is personal for sustenance and is ended by the death of the pensioner, is owed to the heir, when the pensioner has died, in proportion to the elapsed time. - La Croix 1023; Gur. Cas. 1005. According to C. I. 481; C. G. 586, civil fruits accrue day by day. Cf. C. B. 101. According to C. I. 1799; C. G. 1980, in a life census, pensions accrue day by day; but if it has been agreed that they be furnished in advance at the beginning of each year or month, once that time comes, the whole of the entire year or month is immediately owed. Likewise according to C. I. 482, 867, the usufruct of a life revenue gives the usufructuary the right of demanding pensions from day to day, and a legacy under the title of food can be demanded from the beginning. According to C. A. 1285.

1418, a life revenue, in doubt, is paid in advance each quarter; but food payments are furnished in advance at least by the month. According to C. B., a life revenue must be paid in advance each quarter, and the right to the whole revenue remains, even if at the beginning of the quarter he to whom the revenue is owed dies. According to C. H., the revenue corresponding to the year in which he who enjoys the life revenue dies is to be paid in proportion to the days which he lived, and, if it was to be paid in advance, the whole is owed. Cf. art. 880. According to the Constitution of St. Pius V Cum onus, § 3, Feb. 16, 1569, "payments which they commonly call anticipated" are prohibited from being made or brought into pact.

How is census extinguished and rescinded? Census is extinguished: 1. By redemption on the part of the censuary, C. I. 1783; C. G. 1911; and, if it is for life, by the death of him for whose life it was constituted, C. I. 1801; C. G. 1982; C. A. 1285. 2. By the office of the judge, in cases determined by law, C. I. 1785, 1786; C. G. 1912, 1913; C. L. 1649. - A reservative census can be rescinded, like any other sale and purchase, e.g., if the censualist, as seller, has been injured beyond half of the just price; or if, as donor, he afterward has children.

A census can also be rescinded if the censuary has ceded his goods, or has ceased to be solvent. But where the debtor, before he cedes his goods or ceases to be solvent, has alienated the land, the creditor cannot demand redemption of the census if the possessor of the land is prepared to pay the canon and give securities for it. C. I. 1786. Cf. C. G. 1913. When a census has been dissolved because the conditions were not fulfilled, or rescinded because children have been had, rights acquired by a third party over immovable goods remain intact, just as in sale and exchange. C. I. 1787. Census is not extinguished by the civil death of the censualist, but passes to his heirs until his natural death, C. I. 1801; C. G. 1982, 1983.

1. "Whether diminution of fruits, or of the annual pension, is owed in those censuses in which for each hundred of scutated coins ten coins of the same kind are paid as fruits, which fruits, regard being had to the unjust circumstances of times and places and to the condition of debtors, seem to exceed just limits."

R. It must be considered "first what was the time of the creation of the censuses; and if it is known that their pensions, at the time when the same were created, did not exceed just limits, there is no place from the title of justice for reduction or diminution of the same pensions, even if, regard being had to a subsequent or present time, those pensions could seem heavy and exceeding what is just, just as from the same title of justice there would be no place for enlargement or increase of the same pensions, if, regard being had to the time subsequent to the creation of the censuses, they should seem too small and less than what is just; because, just as in all contracts, so also in censuses, their justice is to be measured in relation to that time in which they were created." But since a census is a contract by which a thing estimable by price is bought, and the just common price of things is of three kinds, highest, middle, lowest, it will not have to be judged that the aforesaid pensions exceeded just limits "if the pensions of the contracts in controversy, at the time when the same were created, did not exceed the highest of those which were then in common use." Wherefore then it must be established also from this head that the aforesaid pensions "are to be judged just, and that no diminution is owed from the title of justice." From the title of justice; for, "regard being had to present unjust times and circumstances, there ought to be place for Christian charity and evangelical prudence, in order to avoid murmuring and to ward off scandals." S. C. de P. F. 20 Aug. 1826; Collectan. n. 2132.

2. The seller Huetius was seeking diminution of a census, on the ground that part of the censused house had collapsed, and he himself had repaired it amply. Was this justly?

R. It would have to be investigated "whether that part of the house collapsed by chance, or rather from the negligence and fault of the censuary." If it collapsed by the negligence and fault of the censuary, surely nothing would have to be remitted to him for the repair of the aforesaid house. Concerning this matter there can be no place for doubting. "Similarly, it is an undoubted matter that for repairs merely useful and not necessary nothing is owed by the censualists to censuaries.... But neither for the necessary repair of the aforesaid house was anything owed to be remitted to Huetius from justice, if, after the ruin, the part of that house which survived was capable of paying the whole pension of the census." The pension of the census would have to be diminished pro rata only "if the part of the censused thing which survived had become incapable of paying the whole pension"; or, that that pension may remain in its integrity, "the principal capital of the census will have to be increased pro rata." S. C. de P. F. 20 Aug. 1826; Collectan. 2. 2132.

931. • Census is the right of receiving an annual pension from a thing or person. Census can be manifold, namely:

1. Reservative, that is, an annual pension to be received from a thing alienated as to the land.

2. Consignative, that is, an annual pension to be received from a thing or from a person from the title of purchase.

3. Real or personal, according as the pension is constituted on a fruit-bearing thing, or on the labor and skill of a person.

4. Temporary, or perpetual, or for life, according as it is constituted for a time, for example, for 20 years, or in perpetuity, or for the life of a man.

5. Redeemable from one or each side, according as it can be redeemed at the nod of either party or of both; or irredeemable, if by pact the seller or censuary cannot free himself through restitution of the capital: then the buyer, or censualist, necessarily preserves his right to the census.

932. Principles. - I. Any reservative census is lawful, because anyone transferring the ownership of his own thing can reserve to himself part of its fruits, provided he diminishes the price in proportion to the reservation.

II. A real consignative census, both fruit-bearing and pecuniary, is lawful, because it is lawful to sell and buy the right to some part of the usufruct, or to an annual pension.

III. The same conditions generally are required for census by natural right as for sale, namely 1. good faith; 2. sufficient insurance on the part of the censuary toward the censualist; 3. a just price, which is determined by law or by common estimation.

933. Questions. - Q. 1. Whether a personal consignative census is lawful?

Resp. Affirmatively, at least by natural right, provided the due conditions are observed; because the right of receiving a pension from another's labor, skill, etc., is as appreciable by price as the right of receiving it from a fruit-bearing thing. - Thus commonly. - St. Lig. n. 839, against others denying it because a person cannot be sold. From Gallican law no one can bind his works except for a time, or for a determined business (1780).

Q. 2. Whether a REDEEMABLE census is lawful?

Resp. Affirmatively, at least on the part of the censuary, just as retrovendition can be lawful. - In Gallican law every census is by its essence redeemable; but it is lawful to agree that it cannot be redeemed before 30 years, just as the price or condition of alienation of an immovable thing (530, 1911).

934. • Q. 3. Whether it can be redeemable on each side?

Resp. Affirmatively, more probably, because it is a true sale, and the buyer ought not to be of worse condition than the seller, provided there is good faith and equality is otherwise observed. - St. Lig. n. 843. - Less.-Laym., against others.

Q. 4. Whether it is lawful to buy at the current price annual censuses founded in the Government, or shares from the public banker (in French, actions de la banque)?

Resp. Affirmatively. For they are sold as merchandise; they increase or decrease in price according to common estimation.

935. • Q. 5. Whether a life census is lawful?

Resp. Affirmatively. For it is an aleatory contract, and in no way is repugnant to natural right, and it is approved by civil law.

The following conditions, moreover, are required:

1. Account must be taken of the age or health of the person.

2. The price ordinarily ought not to extend beyond 15 for 100.

3. The censuary cannot redeem himself except by the will of the censualist; nor can the censualist reclaim the capital except insofar as the censuary does not provide the promised securities.

4. The census is not extinguished by the civil death of the censualist, but passes to his heirs up to his natural death (1982, 1983). - See Cases, n. 1005.

4. The contract known in Scholastic parlance as census (French, rente) is an agreement by which a person (censuarius) transfers the right of ownership and the usufruct of an object to another (censualista) in consideration of an annuity or pension.³⁴

³⁴ Gury, op. cit., Vol. I, n. 874: “Census (French, rente) is the right to receive an annual pension from a thing or a person. Census can be manifold, namely: 1. Reservative (rente foncière), that is, an annual pension to be received from a thing whose ownership has been alienated; 2. Consignative (rente constituée), that is, an annual pension to be received from a thing or person by title of purchase; 3. Real or personal, according as the pension is constituted in a fruitful thing or in a person’s labor and industry; 4. Temporary or perpetual or life-long (rente viagère), according as it is established for a time, e.g., for 20 years, or in perpetuity, or for the life of a man; 5. Redeemable by one or both parties, according as it can be redeemed at the option of one or both, or irredeemable, if by agreement the seller or censuarius cannot free himself by restoring the principal; then the buyer or censualista necessarily retains his right in the census.” Cfr. nn. 875–878.

The juridical distinction between this sort of contract and an investment of capital consists in this that the property transferred in consideration of an annuity cannot be demanded back like money simply loaned to another. Formal justice is safeguarded by the legal fiction that the investor merely receives back in small portions what he has entrusted to another. What he receives, therefore, in the form of interest, is his own property, whereas the other party to the contract gets for his trouble whatever gain he can make with the capital or property confided to him.

The question which has worried many a moralist, whether one may live on rentes without productive work, is theoretical rather than practical. “Nature itself,” says Linsenmann, “compels children who are not yet old enough to support themselves, old men who are no longer able to work, and those disabled by illness, to live off the labor of others. Moreover, a considerable number of men and women are destined by natural law and the so- cial order to devote themselves not to productive bodily labor, but to the higher intellectual and spiritual tasks of humanity. To this class belong most public officials, priests, nuns, authors, teachers, etc. . . . If their right to participate in the productive labor of their fellows is conceded, it is no longer a theological, but purely an economic question whether the fructification of capital had better take place in the limited form of census, rentes, or annuities, or in the freer form of modern investments. Catholic moralists, being conservative, admitted the justification of the contract called census more readily than the lawfulness of the more modern forms of investment, for the reason that it seemed to them more conducive to the stability of property rights, though already in the Middle Ages it was perceived that the irrevocability of census contracts sometimes involved unnecessary and unfair harshness.”³⁵

³⁵ Linsenmann, Lehrb. d. Moraltheol., pp. 554 sq.—Cfr. J. A. Ryan, The Church and Interest-Taking, St. Louis, 1910.—P. Cleary, The Church and Usury, pp. 121 sqq.

1146. • DEFINITION. Census (rente) is a right of perceiving an annual pension from a thing or person.

It differs essentially from loan for consumption in this, that in the contract of census, even a temporary one, the price or capital is alienated in perpetuity, while in the contract of loan for consumption restitution of the principal after a determined time is established as to be made. And census can be constituted both by onerous title and by gratuitous title (III, 839). Cf. Ferraris, v. Census.

He who acquires the right of perceiving a pension is called the censualist, censitor, buyer, creditor. But he who assumes the obligation of paying it is called the censuary, seller, debtor. The pension to be paid is called canon, revenue, or rent, because it itself returns or is returned each year.

DIVISION. 1. By reason of the price by which it is bought, census is reservative or consignative.

Reservative census is bought by the handing over of an immovable thing: for example, I cede my field to you under the condition that you pay annually to me five bushels of wheat, or fifty francs. - Consignative census, or simply so called, is bought by money: for example, I hand over to you one thousand francs so that you may pay me fifty francs each year.

2. By reason of the thing in which it is founded, census is real or personal.

Real census, or ground-rent, is that which is constituted in some fruitful thing, so that the obligation of paying passes to any possessor whatever of this thing; and when the thing perishes, the census perishes. - Personal census is that which is founded, directly and immediately, in the labor or industry of some person, who obligates himself and his successors to paying without order to some thing from which the pension must be paid (III, 847; H. Ap., X, 201). Cf. n. 839.

3. By reason of the thing which is owed, census is pecuniary or fructuary, according as it must be paid in counted money or in fruits.

4. By reason of the time during which the pension must be paid, census is temporary, or life-long, or perpetual.

a) It is temporary if it is constituted for a determined time, for example for twenty years; b) life-long, if for the life of the censuary or censualist, or even of another person; c) perpetual, if without any term of time, so that it must pass to the heirs both of the censuary and of the censualist.

4. By reason of the mode joined, census is redeemable or irredeemable, according as the obligation of paying can be extinguished, the price being restored, or not.

But it can be redeemable at the will of the censuary, or of the censualist, or of each, according as the faculty of demanding that the contract be resolved through restitution of the capital, without deduction of pensions which meanwhile came, belongs to one or the other, or to each. Redeemable simply is understood as at the will of the censuary. To one considering it, it is clear that restitution of the principal here is obtained, not by force of census, but by force of the joined pact, namely of selling back.

1147. PRINCIPLES. I. Census is licit, provided the due conditions are preserved. It is established: 1. from the Bulls of the Supreme Pontiffs, who approved census under certain conditions, and from the unanimous consent at least of theologians of today; 2. from reason, for census is nothing other than a contract of sale or exchange, in which the pension to be paid is the merchandise, whose price is the capital, thing or money, which is handed over. Wherefore, the rules of sale also have force in the present matter (III, 839-849; H. Ap., X, 196 ff.).

1148. II. From Natural Law, the condition required in the first place is equality between the census and the price. But that price is determined either by law or by common estimation; which estimation, in these times, is found described in public sheets. Therefore without doubt it is licit to buy and sell, at the current price, annual censuses founded in the Government.

From CIVIL Law:⁰² 1. Perpetual census is essentially redeemable on the part of the censuary. Yet it is licit to agree that it cannot be redeemed before a certain time, which cannot be prolonged beyond the limits constituted by law. The faculty of seeking back the principal and extinguishing the census is not conceded to the censualist except in the defined cases, namely if the censuary has omitted to pay the census for two years, or if he has not constituted the due securities, or has been compelled to cede goods. 2. Life-long census, since it is for an uncertain time, is necessarily aleatory; but it must be constituted according to the probability of length of life, with account had of age, health, and complexion of the person to whom the annual pension must be paid.⁰³

From CANON Law: 1. Personal consignative census is forbidden through the Bull of St. Pius V Cum onus, on account of danger of usury. The Bull nevertheless, according to St. Alphonsus (III, 849), has not been received in many places. 2. In the case of enfranchisement of land, namely when the land is freed from the burden of furnishing census to the Church or to a pious place, "a new investment cannot be made in banks, public or savings chests, nor in notes of public debt; because it is not held as a canonical and stable investment; but it must be made in stable, safe, and fruitful goods... Yet, in these times, it is customary for the Sacred Congregation of the COUNCIL to concede that investment be made also in nominative bonds of public debt, when it cannot be done otherwise." Cf. A. S. S., I, p. 537, 569.

1027. • Census is the right of receiving an annual pension from a thing or person. Census is:

1° Reservative, that is, an annual pension to be received from a thing, for example fields, houses, as to the property alienated (rent-seck [dry] or barren rent).

2° Consignative, that is, an annual pension to be received from another's thing (rent charge) or from a person (annuity) by title of purchase.

3° Real or personal, according as the pension is constituted in a fruitful thing, or in the labor and industry of a person.

4° Temporary, or perpetual, or for life, according as it is constituted for a time, for example for 20 years, or in perpetuity, or for the life of a man.

5° Redeemable from one or both parties, according as it can be redeemed at the judgment of either or both; or irredeemable, if from the pact the seller or censuary cannot free himself by restitution of the capital: then the buyer, or censualist, necessarily preserves his right to the census.

1028. Principles. - I. Any reservative census is licit; because anyone, transferring the ownership of his thing, can reserve for himself part of the fruits of it, provided he diminishes the price pro rata of the reservation.

II. Consignative real census, both fruitful and pecuniary, is licit, because it is licit to sell and buy the right to some part of a usufruct, or to an annual pension.

III. The same conditions generally are required by natural law for census as for sale, namely 1° good faith; 2° sufficient assurance on the part of the censuary toward the censualist; 3° a just price, which is determined by law or common estimation.

1029. Questions. - Query 1° Whether consignative personal census is licit?

Resp. Affirmatively, at least by natural law, provided due conditions are observed; because the right of receiving a pension from another's labor, industry, etc., is as estimable by price as the right of receiving it from a fruitful thing.¹

Query 2° Whether REDEEMABLE census is licit?

Resp. Affirmatively, at least on the part of the censuary, just as resale can be licit.

1030. • Query 3° Whether it can be redeemable from BOTH parties?

Resp. Affirmatively, more probably, because it is a true sale, and the buyer ought not to be of worse condition than the seller, provided it is of good faith, and equality otherwise is observed.²

1031. • Query 4° Whether census for life is licit?

Resp. Affirmatively. For it is an aleatory contract, and is in no way repugnant to natural law.

But the following conditions are required.

1° Account must be had of the age or health of the person.

2° The censuary cannot redeem himself except from the will of the censualist; nor can the censualist seek back the capital except insofar as the censuary does not furnish the promised securities.

Note. Among us the contract of census is rare. Kent treats of it, T. II. n. 460 sq.

562. Census (rente; inkomst) is said from censere, or estimating, because formerly the goods and incomes of citizens were estimated so that the taxes to be paid by each one might be determined; hence it signifies:

1. Annual revenue (thus someone is said to live from his censuses), especially a direct tax (Mt. XXII, 17); but most strictly revenue from the very powers of the earth, not improved by human industry, but native and intrinsic. Thus it is taken among economists who distinguish a threefold cause of riches: labor or industry which produces them and to which wage or salary is owed; capital, or the means and instruments by which they are produced (to this pertains improvement of the land), and to this interest or usury is owed; the land from whose powers they are produced, and to this census is owed;

2. It signifies a right to annual revenue;

3. The contract by which that right is constituted (a. 1968-69: constitution, etablissement de rente; vestiging van rente); moreover, this can be done in a twofold way: a) by a gratuitous title through donation or testament; b) by an onerous title through purchase and sale, and then it is properly the censual contract.

563. The censual contract is a contract by which the right of receiving revenue is bought and sold, or a real contract by which someone (the creditor, censualist), after the price has been paid which he cannot demand back, acquires from another (the debtor, censuary) the right of receiving revenue from the fruitful thing or person of another (a. 1909). It is said:

1. A real contract, because it is not perfected by the consent alone of the parties, but by the payment itself of the price by which the right to the census is obtained;

2. By which, after the price has been paid which he cannot demand back, because it is a species of purchase-sale, in which the censualist is the buyer, the censuary is the seller: thus it is distinguished from mutuum and letting;

3. Someone acquires the right of receiving revenue or an annual pension: this is the specific difference by which it is distinguished from other sales, because, namely, the right to a pension is the merchandise. In Roman and canon law the revenue itself, or pension, is called the canon; this pension can be either pecuniary or fruit-bearing, according as it will have to be paid in money or in fruits; certain, if the pension is altogether determined, or uncertain, if only an aliquot part is to be paid. He who acquires the right to revenue is called the censualist (rentier, credi-rentier; renteheffer);

4. From a thing or person, because the thing or person itself is not bought and sold, nor the labor or industry of the person, but the right to the pension to be received from it;

5. Of another, because no one is said to have a census upon his own thing, although he receives a pension from it. The other, who must pay the pension, is called the censuary (debiteur; rentschuldige);

6. Fruitful: for if it itself were sterile, the census would be fictitious and null, since nothing can be received from a sterile thing or person, and the right of receiving revenue from a thing or person which could not produce and pay it would be bought in vain.

564. Diverse species of census. Census 1. is either reservative (rente fonciere; grondrent), which someone reserved to himself when he transferred his own thing into the dominion of another (direct and useful), whether by donating or by selling; for example, he sells a field under the condition that an annual pension, or ten measures of wheat yearly, be paid to him. Or it is consignative (rente constituee; gevestigde rente), which someone, retaining dominion over his own person or goods, has assigned, conceded, or sold to another by means of money received from him; for example, after receiving 10,000 francs, he obliges himself to pay an annual revenue of 700 francs. In other words: census is reservative when someone hands over or sells the dominion of his own thing to another for revenue to be paid yearly to himself; consignative when someone hands over or sells to another the right of receiving revenue to be paid yearly by himself, for example, if someone for 1,000 fr. concedes the right of receiving 70 fr.

2. Census, especially consignative, is divided into a) real, which is constituted immediately upon a fruitful thing, for example, a house or estate, and in such a way that it inheres in the thing and follows it to whatever person it may come, and perishes or is extinguished if the thing itself perishes without the fault of the censuary;

b) personal, which is constituted immediately upon the person who obliges himself to furnish an annual pension from his art or labor: this obligation passes to the heirs like other debts;

c) mixed, which immediately affects the thing and person at the same time, so that both the person and the thing upon which it is constituted are immediately obligated, and therefore, when the thing perishes, the census must be paid from the profits of the person, and, when the person perishes, from the thing, into whosever hands it may have come. Such censuses are ordinarily created; indeed, for greater security, censualists are accustomed to demand that either the thing itself or another be handed over in mortgage, and censuses of this sort are called hypothecary.

N. B. Formerly real census was held as a fraction of dominion (un demembrement du droit de propriete) and therefore as an immovable good; but now any census is computed among movable goods (C. C., a. 529), and therefore the censualist is a mere creditor who has a right to a thing and not a right in a thing; and the censuary is a debtor who for the most part can free himself by redemption alone.

3. Census, both reservative and consignative, is redeemable (rachetable; aflegbaar) or irredeemable, according as it can or cannot be redeemed at the will of either one or of both; likewise it is perpetual, or temporal, or for life (rente viagere; lijfrent), according as it is constituted either in perpetuity, or for a determined time, for example, 20 years, or for the life of a man (a. 1910).

From our civil law, every perpetual census (from a gratuitous or onerous title) is essentially redeemable, so that the debtor, when he wishes, can free himself by returning the principal to the creditor. But it is permitted to the creditor to stipulate that the census is not to be redeemed except after 10 years, if a fungible thing is handed over (a. 1911), or except after 30 years, if an immovable thing is handed over (a. 530). Nevertheless he regularly cannot demand payment of the capital, and thus census differs from mutuum, since mutuum supposes that the thing is to be returned after a time and therefore can be demanded back after the time has elapsed. On the contrary, the creditor will not be able to demand repayment except in a threefold case: a) if for two years the debtor does not pay the pension; b) if he does not furnish the security promised in the contract; c) if he falls into a state of insolvency (deconfiture) (a. 1912 and 1913; 1188; 1183). But life census is irredeemable, both on the part of the creditor if the debtor has been in delay in paying, and on the part of the debtor, if perhaps he could be burdened by it more than is fair. But the creditor can seek rescission of the contract if the debtor does not furnish the promised security (a. 1977), and act so that the goods of the debtor are sold if he has omitted payment of the pension (a. 1978).

565. The censual contract of itself is licit and just, provided equality of price is observed. For it is nothing other than a contract of sale or commutation, by which one cedes a fund or money to someone and another concedes the right to an annual pension, which right in common estimation is equivalent to the thing handed over.¹

¹ It does not matter that in the course of time the pensions to be received exceed the price paid: this also happens in the sale of a fruitful thing, which nevertheless no one would call illicit.

Nor can it be said to be a virtual mutuum which disguises usury, even if the census is redeemable by the buyer. For 1. while in mutuum nothing is bought, in census the right of receiving fruit is bought; 2. while in mutuum the principal obligation is to return the principal, so that the borrower is held to return the same principal, in census the principal obligation is to pay the pension, and there is of itself none to return the principal: for the capital becomes dead and can only be returned, at the will of the seller, or even of the buyer.

566. Observations. 1. Life census is not to be confused with the contract which they call the pact of alimentation (contrat d'alimentation ou bail a nourriture), by which someone, for a sum of money, acquires the right to habitation, food, and clothing until the end of life: for this is not a life census, nor is it ruled by its rules, because it does not give a right to a determined sum or quantity of fruits.

2. Life census by gratuitous title is not an onerous contract, but a solemn gratuitous one (a. 1969; cf. a. 1971-73), unless the donation is accessory or simulated. Hence a. 1912 C. C. is not applied to gratuitous census, but to censuses constituted before the Civil Code, because the execution of a contract is to be ordered according to the laws of the time in which the execution is made.

3. The annual pension is prescribed in our law by 5 years; and the title of census by 30 years, whence it is to be renewed.

I. SOLE QUESTION. What is a rent-charge, and of how many kinds is it? ANSWER. It is the right of exacting a pension from another's fruit-bearing thing. The younger authors add another particle, or from a person, that they may include in the common definition of a rent-charge the personal rent-charge. But since that rent-charge is to me fictitious, and a mask of usury, therefore I exclude it from the definition of a rent-charge.

II. A rent-charge is distributed into reservative and consignative. When a man delivers his thing to another with this burden added, that he who receives the thing pay yearly a prescribed pension, he constitutes a reservative rent-charge. A consignative rent-charge is that in which, the dominion of your thing — an estate, a house, and so forth — being retained, you sell to another the right of perceiving a pension every year.

III. The consignative is again divided: first, on the part of the thing in which it is founded, into real, personal, and mixed; second, on the part of the pension, into pecuniary and fruit-bearing; third, on the part of time, into temporal and perpetual; fourth, on the part of the manner in which it is celebrated, into redeemable and irredeemable.

IV. A real rent-charge is constituted upon a field, a house, or some fruit-bearing land. If it be alienated and pass to several lords, the burden of that rent-charge passes also, until it be redeemed. If the thing perish, the rent-charge perishes. A personal rent-charge is constituted immediately upon a person, who is obliged to pay the pension from his industry, labour, and works, and also from his goods, if he have them. That rent-charge immediately affects and accompanies the person, not the thing. Wherefore if the goods perish and not the person, the rent-charge stands. And although a hypothec be delivered for assurance, it does not therefore pass into a real one, because the hypothec does not remain immediately obligated, but only in default of the person. A mixed one is constituted both upon a thing and upon a person. And therefore if the thing perish and not the person, the latter must pay; if on the contrary the person perish and not the thing, the pension is exacted from the latter. A pecuniary one is paid in money, a fruit-bearing one in fruits. A temporal one has a fixed time. A perpetual one lasts always. A life rent-charge is bound to an uncertain time, namely to a person. A redeemable one can be redeemed at the discretion of the rent-buyer, or of the rent-payer, or of both. An irredeemable one can never be redeemed. He who buys the rent-charge is called the censualist; he who pays it, the censuary.

V. The real rent-charge Martin V, Callixtus III, and St. Pius V in the constitution Cum onus, and so forth, in the year 1568, approved. That contract is lawful and just. Both parties consent. The price is just. Since although all the pensions taken together exceed the price of the thing, yet received successively they are worth less.

VI. The assailants of rent-charges, the defenders of usury, object: A rent-charge is a pure and mere loan. I deliver to you 100, that every year you render me five. Ten years having elapsed, the principal has been rendered. And nevertheless I shall receive five every year in perpetuity. What is this but a perpetual loan?

VII. The various answers which authors afford show that the objection is of no light moment. The only true answer seems to me this. An accession above the principal in a loan is disapproved, because money by its own nature is barren and is consumed by civil use. It becomes fruitful by the industry of the borrower, not of the lender. On the contrary, the estates of rent-charges are by their own nature fruit-bearing, in which the usufruct is distinguished from the dominion. If these two are in fact distinct, one can be sold without the other. Nor is this asserted gratuitously. For if the field, the house, the estate in which the rent-charge is founded perish by alluvion, fire, or another way, it perishes to the censualist himself and by no means to the censuary. On the contrary in a loan it perishes to the borrower, not to the lender. The difference therefore is true and real. The matter comes back to this, that rent-charges be celebrated according to the apostolic constitutions: that there truly intervene a real contract of selling and buying of the right of perceiving pensions; and that the estate of the rent-charge be in fact fruit-bearing, free, and corresponding to the principal. Most frequently those rent-charges are fictitious, because the conditions prescribed by the pontifical constitutions are not observed. Those authors who neglect the conditions prescribed by the Holy See expose the pontifical bulls to the calumnies of heretics. If you are eager to know more of the difference between a rent-charge and money lent, read our commentary on the Encyclical of Benedict XIV, dissertation 3, chapter 4, § 5.

I. If real rent-charges themselves, approved by pontifical authority, present a difficulty, and thence the patrons of usuries snatch a handle for making moderate usuries honourable, everyone sees what is to be said of personal rent-charges. The justice of real rent-charges is defended if the prescribed conditions be observed. These conditions are lacking to personal rent-charges. Therefore they are usurious.

II. Martin Navarrus, On Usuries, no. 80, testifies that almost all theologians and canonists condemn the personal rent-charge. Fr. Lessius cites Biel as a patron of the personal rent-charge. But Biel in Book 4, distinction 15, question 12, says: This I say recitatively, and so forth. Fr. Lessius answers, Book II, chapter 22, doubt 10, no. 56, that this is no objection, saying: For we are wont to speak thus, for the deprecating of odium, when we bring forth from our own opinion something of nerve and adverse to a received opinion. Have you understood? We are wont to speak thus when we forge something new and adverse to received doctrine. Is it lawful therefore in controversies of morals to forge new doctrines opposed to the received doctrine of the ancients? For the declining of odium ambiguous words are used. Either the doctrine is true or false. If true, is odium to be feared by the disciples of Jesus Christ? But it is disposed by divine providence that the doctrine which they themselves maintain should be called by the authors themselves new and opposed to ancient doctrine. For if it is new, and handed down neither by the Gospel, nor by the Fathers, nor by the Councils, it is assuredly false.

III. Fr. Paul Layman, Book 3, tract 4, chapter 18, writes: A personal rent-charge redeemable on either side, settled upon present industry, is probably defended. Nevertheless it is not free from the danger of a usurious intention. So, against the common opinion, say the Doctors. Do the Doctors defend probably against the common opinion? Who are these Doctors who set themselves against the doctrine of the Church of all ages?

IV. Fr. Patrick Sporer, the collector of Tamburini, Layman, Sánchez, and Diana, tract 6, chapter 1, no. 16, writes: Most probably lawful also is the personal rent-charge … even redeemable on either side, even with an agreement of assurance added, regarding precisely the nature of the thing, although everywhere there underlie a danger of usurious intention: therefore it is deservedly prohibited by the bulls of the Pontiffs. The personal rent-charge is lawful, and indeed most probably, and at the same time deservedly disapproved by the bulls of the Pontiffs? Are new casuists better interpreters of natural and evangelical law than the Supreme Pontiffs? If the rent-charge is deservedly disapproved by the bulls of the Pontiffs, let us, disputations being dismissed, with joined hands disapprove the same. But Fr. Viva resists, who in part 4, question 4, article 3, no. 6, teaches that the Doctors most commonly deny that the personal rent-charge is usurious.

V. Consider the rise, increase, and propagation of this opinion. Biel began recitatively; Fr. Lessius followed speculatively; Fr. Layman probably; Fr. Sporer most probably; Fr. Viva most commonly. Thus are new opinions propagated against the ancient doctrine of the holy Pontiffs.

VI. But if the pontifical bulls forbid the personal rent-charge, as our adversaries confess, by what reason can they maintain it? And that the pontifical bulls disapprove this contract, besides our adversaries, Benedict XIV testifies, Book 7, chapter 48, no. 5, On the Synod, where he says: It is superfluous to assail with new arguments the personal rent-charge, which St. Pius V has already proscribed in the praised constitution Cum onus, where among the other conditions for the honesty of a rent-charge he requires this also: that the rent-charge be constituted in a fruit-bearing thing, not of any kind whatsoever, but immovable, certain, and expressly designated.

VII. Fr. Paul Comitolus, a most learned Jesuit and antiprobabilist, Book 3, Moral Answers, question 27, cries out: Who could think that all the provinces and kingdoms of the Christian empire are not bound by this law? … But to me it is by no means doubtful that the constitution has force in all kingdoms and provinces: which those words of the same constitution declare not obscurely: But we will, and so forth. … There is added this most firm reason: The Pontiff could by a necessary law remedy pernicious rent-charges; he ought, he could, and he willed to remedy them in all places. Wherefore it was necessary that this law be in the highest degree general: otherwise the Roman Pontiff would not very prudently have consulted the salvation of all Christian nations and likewise his own, since he would not have taken away that evil from all the provinces of the Christian world, which he could and ought to have taken away by an equitable sanction.

VIII. But what argument of non-acceptance will someone bring forward? That it was not promulgated in every province? Imagine even this hypothesis. What province, what kingdom instituted an examination, the form of law being observed, whether the Pian Bull is to be accepted or not? None at all. Why then is it not accepted? Because avaricious and covetous men and usurers have continued these usurious rent-charges and usurious exchanges. Who would dare to assert this? For no other cause therefore can it be said not accepted, save because some theologians, seeing the peoples for the greater part celebrating personal rent-charges, dry exchanges, and triple contracts no otherwise after the Bull than before, with a pious intention, as it becomes us to think, of preserving them from the crime of usury, began then to write: The Bull is not received in usage. And not a few after them continued to write that the Bull was not received in usage, although in these times Benedict XIV has alleged the same Bull against personal rent-charges. But let them hear and imitate the most celebrated Jesuit Fr. Comitolus, Book 3, question 27, no. 5, thus speaking: For the arbiters of sacred confessions ask: what then shall we have to do with those who perceive fruits from rent-charges which are neither made nor celebrated according to the prescribed rule of the constitution? What likewise with the lords of the provinces? I would do this. The lords of the provinces, unless they were willing to accept the Pian Constitution, I would not absolve. As for the rest, if they have committed anything by fraud or guile in contracting a rent-charge after hearing the law of Pius V, I would pronounce void whatever they have done, that the contract was null, and that therefore they had no right of perceiving the pensions; and thus that they are liable to necessary restitution.

IX. The champions of the personal rent-charge are divided into two ranks. Some defend the personal rent-charge only on the part of the seller, not on the part of the buyer, as Henry of St. Ignatius, whose work has been proscribed, and in the matter of usury is perhaps laxer than is equitable — which be said for the unskilled, who cite this author as if he always maintained sound doctrine. Others defend the same redeemable on either side, a hypothec also being added.

X. Thus do those authors argue. I can sell you the right of perceiving the fruit of my field. Therefore by the same reason I can sell you a part of the fruits of my industry. Either therefore the real rent-charge is to be disapproved, or the personal rent-charge approved.

XI. A futile and inept quibble. Land by its own nature brings forth fruits in perpetuity. A human person is changed by the day. Today fruitful, tomorrow barren. Today he contracts a personal rent-charge, tomorrow he falls into a long illness. Meanwhile the rent-charge runs every day. The law of nature therefore being regarded, to which the defenders appeal, that rent-charge is usurious, and as such the Pontiffs have condemned it, wiser interpreters of that law than others.

XII. The clause which prescribes that a fruit-bearing and immovable estate must underlie the rent-charge regards natural law and the very substance of the contract. This clause four Roman Pontiffs enjoin: Martin V, Nicholas V, Callixtus III, St. Pius V. It would never have been disputed among theologians before the Pian constitution whether the aforesaid clause were merely of human law, but whether it would be usurious, this clause being removed. They declared the rent-charge usurious, a fruit-bearing, immovable, and determinate estate being lacking. Therefore now also it is to be so held.

XIII. In few words I sum up everything. If reasons be compared with reasons, the reasons for the personal rent-charge were invented first recitatively, then speculatively, thence probably, again most probably, at last propagated most commonly among the younger authors. If the authority of the theologians and canonists be compared with the authors, even Fr. Lessius himself confesses that in his time our opinion was the common one. Imagine all the arguments of either side equal. The Supreme Pontiffs condemn the personal rent-charge. Imagine also — which I altogether deny — that the pontifical prohibition is of positive law. What then? Do laws which forbid some contract on account of the appearance of usury, on account of the most grave dangers of frauds, oppressions, and usuries, not oblige everywhere among the nations? Is the obligation of avoiding grave dangers and the scandal of heretics not of natural and divine law? Does it not bind all provinces? And in a matter so most grave as avarice and usury, are we to adhere to the interpretations of certain men, the sanctions of graver theologians and of the Supreme Pontiffs being neglected? Do you, Christian reader, sit as judge.

XIV. I hold it therefore certain and firm that the personal rent-charge, whether redeemable on either side, or irredeemable, or conceived in whatever manner, is usurious. The usury indeed betrays itself more evidently in the rent-charge redeemable on either side; but the opinion concerning this irredeemable rent-charge is not therefore probable. St. Pius V, as our adversaries confess, condemned the personal rent-charge. But an opinion condemned by the Holy See lacks all probability. For fourteen centuries the Christian commonwealth lived without rent-charges. The Roman Empire itself was ignorant of rent-charge contracts. As soon as they were brought in, four Roman Pontiffs by prescribed clauses purged the real ones from the stain of usury. If you desire more concerning real and personal rent-charges, read Vol. VII, Book 3, dissertation 4, chapter 12, where you will find many things which regard the history, and all the sophisms of our adversaries overthrown.

XV. QUESTION I. The law of nature being regarded, is that agreement lawful by which a censuary is bound to redeem the rent-charge at the buyer's pleasure? ANSWER. Some affirm it. But this opinion is to me false, the law of nature alone being regarded. As often as you deliver money with an agreement that just as much be restored, it is usury if you exact accessions beyond the principal. This happens in the present case. Since indeed you buy a rent-charge at the price of a thousand gold pieces; you perceive fifty every year; you compel the censuary that after a period of three or six years he redeem the rent-charge at the same price. What more is required for a true loan and usury? The matter stands contrariwise when the faculty of redeeming the rent-charge remains on the part of the seller alone. For this faculty does not take away the true character of buying and selling: because since the seller can never redeem the rent-charge, on his part a loan cannot be feared. Wherefore the buyer truly buys, since he cannot demand back the price given. This opinion the graver theologians defend. The seller can be obliged to redeem the rent-charge in the same coin, provided the danger of increase and of decrease be equal.

XVI. QUESTION II. The estate subject to the rent-charge perishing, does the rent-charge perish by natural law? ANSWER. St. Pius V in his constitution affirms that, the estate subject to the rent-charge perishing either wholly or in part, the rent-charge also perishes. The Salmanticenses nevertheless defend the negative opinion, tract 14, chapter 4, point 2, § 4, because, they say, estates are not put under rent-charges that from them the pensions may be paid, but as a pledge and hypothec for the security of the rent-charge. This opinion is to me false. For it being admitted, rent-charges are a true loan with a pledge added.

XVII. QUESTION III. Is a rent-charge lawful to which more estates are subjected, no part being designated and determined? ANSWER. St. Pius V, for the taking away of frauds and usuries, enjoins that a determinate part of the estate be subjected to the rent-charge. Since if the part subject to the rent-charge perish, it ought to perish to the buyer of the rent-charge. Nor is it an objection that in every instrument of a rent-charge all the seller's goods are substituted for the assurance of the same. Since substitutions and hypothecs of this kind are made that the estate subject to the rent-charge may be rendered secure from eviction: namely, if the estate were burdened with another rent-charge, subjected to a trust, or laden with another debt, then the debtor's other goods would have to supply. But for the rest, if the estate perish, it ought to perish to the censualist: this is certain.

XVIII. QUESTION IV. Is a life rent-charge lawful? ANSWER. The common opinion affirms it. For it is a contract of hazard, in which the danger of both parties is equal. For the principal exposed to danger can become fruitful, when the danger is equal as much in respect of the seller as of the buyer. Because nevertheless that contract has the appearance of hazard, unless necessity urge, I should not approve it in respect of those who of set purpose celebrate life rent-charges solely that they may gain. To me in this matter the water sticks. Wherefore, necessity being removed, I persuade Christians to abstain from this rent-charge.

XIX. QUESTION V. Is the contract commonly called a godere, for enjoying, lawful? ANSWER. Diana says this contract is most frequent in Italy. It is celebrated by this agreement. Sempronius gives you his house or his field, and you give him money answering to the value of the house or the field, thus bargaining mutually: You use my money, and I will use your field. When I shall wish, I will demand back the money, and you the field; or: For five years, or ten, use my money, and I will use your field. Some of the younger authors with Diana contend to make this contract honourable under the mask of a sale with an agreement of resale. But it is an open and crafty circumlocution and a mask of a loan. A sale with an agreement of redemption in favour of the seller is indeed lawful. But that agreement in favour of the buyer is usurious, as I have said above. And let these things concerning usury and the cloaks of usury suffice. Read Vol. VII, Book 3, dissertation 4, and the volume On the Usury of the Triple Contract, and the commentary on the Encyclical.

The wealthier and nobler are accustomed to lease their estates or goods to others, who contract from it a certain obligation: and this especially stands in the payment of the census, which admits several conditions both by the law of nature and by positive law: but chiefly it is considered as to the time, which is the term of the sale; and as to the thing which is sold by the census, of which below.

They commonly define the Census: Census est ius percipiendi annuam pensionem ex re, vel persona alterius. By way of example, someone binds himself to another to confer on him each year a certain part of the fruits of his own vine; the right which the latter has of receiving those fruits is called a Census: and he who binds himself to pay the pension is usually called the Censuarius; just as he who has the right of receiving is called the Censualista.

The Census is divided into Reservativum, and Consignativum. It is called Reservativus, when someone transfers his thing to another as to direct and useful dominion, keeping for himself an annual pension over the same thing, as Joseph did Genes. 47. over all the lands of the Egyptians, when he restored them, bought and subjected to the dominion of Pharaoh, to the Egyptians, a census having been established in them. And therefore this census is called Reservativus, because from the very thing which is conferred he reserves, granting to himself, or to another, that census, receiving nothing in compensation for that which he grants from that thing. Whence also this contract takes place in spirituals without the vice of Simony, and it differs from Emphyteusis, because by the Emphyteutic contract only the useful dominion is transferred; but the direct remains with the granter; by this census contract, however, even the direct dominion is transferred. Then, that in Emphyteusis, if the pension is not paid by the Emphyteuta for two or three years, he incurs the Forfeiture, that is, he loses the useful dominion to the proprietor; but in this census contract he does not incur it, but is only held to pay the pensions. Finally they differ, because the Emphyteuta cannot sell the Emphyteutic thing without the lord being asked; otherwise he will fall into the Forfeiture, and moreover from the price he is held to pay the Laudemium to the proprietor: but the debtor of this census can sell the census thing without the Lord, to whom the thing is owed, being asked, nor is he held from the price to pay him the Laudemium. See Caspensem Tract. 19. disp. 5. sect. 1. Bassaeum V. Census, Bonacinam disp. 3. quaest. 4. Lessium lib. 2. cap. 22. Filliucium tract. 35. 2. part. cap. 1. Sylvest. et Becan. 2. 2. quaest. 78. art. 4.

The Consignativum Census, however, of which I treat at present, is, when someone over his goods, whose dominion, or even over his own person, consigns to another the right of an annual pension, as, when Peter sells to Paul the right of receiving over his thing one hundred solidi yearly, one hundred scudi being given for the price, and he consigns the house, or estate, or the very person, from which the pension, or fruits, are to be collected.

This census is first divided, on the side of the thing in which it is placed, into Real, and Personal. The Real is that which is founded in a thing, as a house, farm, estate, etc. so that the pension is to be paid from the fruits of these, until it be redeemed. The Personal, however, is that which is founded upon a person, who sells an annual census to be paid from the fruits of his own industry. The Mixed, however, is that which is established upon a thing, and a person immediately, so that if the thing perish, the person is still bound.

Secondly, on the side of the thing to be paid, it is divided into Fructuarium, and Pecuniarium: For if it is paid in money, it is called Pecuniarius; but if in fruits, Fructuarius.

Thirdly it is divided into Certain, and Uncertain. The Certain is that which determines the quantity of money, or of fruits: the Uncertain is that which establishes it indeterminately, for instance the second, or third part of the fruits.

Fourthly, on the side of time, it is divided into Temporal, and Perpetual. The Temporal is subdivided into that which lasts a certain number of years, for instance of ten years, and into that which lasts an uncertain number of years, as for the whole of life, and it is called Vitalitius. The Perpetual is cut into Redimibilem, which is made with an agreement of selling back; and into Irredimibilem. See Caspensem cited, Tannerum disp. 4. quaest. 7. dubio 4. and Bassaeum.

I assert that it is licit to sell and buy it, unless injustice arises from some other quarter. Thus it is laid down in both Extravagants of Martin V. and Calixtus III. tit. de empt. et vendit. and repeatedly in both Laws, and it is the common opinion of the Doctors at Tanner disput. 4. quaest. 7. num. 116.

It is proved, because a right which one has to receive utility from some thing is estimable by a price, just as also the right which one has to the whole thing, of which he is lord: Therefore that right can be transferred by sale.

Wherefore Medina quaest. 12. de Usuris, Soto lib. 5. quaest. 5. art. 1. Covarru. lib. 3. variar. cap. 7. and the rest refute Henry quodlib. 1. quaest. 39. and quodlib. 8. quaest. 24. and Innocent super cap. in civitate, extra. de usuris, and John Andreas there, and Salicetus in Authent. Ad haec, Cod. de usuris, who deny that a census newly to be instituted can be bought and sold, though they concede that one already instituted can be sold and bought.

It is proved secondly by Casas, because one can bequeath the usufruct of one's own thing, as the text proves in leg. Omnium praediorum, ff. de usufructu, and leg. si quis in 20. of the same title: Therefore he can licitly sell such a usufruct: Therefore also another can licitly buy it.

By this natural law it can be made even from movable things, for instance a flock or a herd, as Medina says quaest. 11. de Usura, Valencia puncto 2. He adds also from money, provided it be exposed to profit, from Soto lib. 6. quaest. 5. art. 1. It is rarer, because from this thing too, like other consumables existing in such a fruit-bearing state, one has the right to receive utility.

A census CAN likewise be sold from other censuses, as Medina and Valencia note. Add that a census is counted among immovable goods by Clement V. Clementina prima.

It CAN be sold also from all the goods of someone, determining none certain one, as many Doctors note at Valencia.

BESIDES, a Census can also be sold from a person, when the person is lucrative, and it is a personal census, as I said quaest. 1. See Casas sect. 3.

NOTE, however, that a census cannot be sold from a thing which yields at the least not so much fruit as the payment to be paid is; for if the thing is not such, the lord does not have the right to receive from it so much utility. But the opposite is admitted without cause by Soto lib. 9. Covarruvias lib. 3. var. cap. 7. Conradus de contract. quaest. 88. concl. 12. at Diana p. p. Tract. 8. resol. 44.

LET THESE things be said by natural law; for by positive law, Extravagant of Pius V. of the year 1568. 14. of the Calends of February it is prescribed that a census not be sold unless from an immovable thing, fruit-bearing by its nature, certain, and assigned with determinate boundaries. Yet this Bull is in force where it flourishes in green observance. Although Navarrus in Comment. de Usuris, numero 106. and Valencia say that the Extravagant, since it proceeds from a presumption of usurious intention in those who do not observe all the conditions required there in the buying of censuses, does not bind in the forum of conscience private individuals who without iniquity before God would buy censuses without those conditions required there, beyond certain necessary conditions, which are of natural law. For there is no place for a presumption in the forum of conscience where the truth is contrary to the presumption, as is had in cap. Tua de sponsal. and cap. Humanae aures, 22. quaest. 5. Yet it binds Judges not to admit in judgment purchases of censuses celebrated otherwise than is prescribed there.

WHICH things being so, Diana p. p. Tract. 8. resol. 44. holds that a census can be constituted from money previously owed, or by handing over some merchandise as the price of the census, and he adduces Maldonado 2. 2. tract. 5. cap. 5. dub. 6. Joan. de la Cruz in direct. part. 1. praecepto 7. quaest. 6. dub. 3. Lessius lib. 2. cap. 22. num. 80. Navarrus in comment. de usuris, num. 88. and 121. Boninsegna de cens. cap 5. Bartholomew of St. Foust in speculo, disp. 18. quaest. 29. who cites Valencia, Salonus, and Palatium. The erudite Megalaeus subscribes 2. 2. lib. 2. cap. 7. quaest. 2. num. 57. on account of the reason of Navarrus brought forward. Sà taught the same verb. Census.

THEREFORE if without fraud in the census contract you find those things which are due by natural law, they conclude it to be licit.

THESE things, however, are from Lessius lib. 2. cap. 22. dub. 12. num. 74. Equality according to estimation between the census and the price. But if any burdens are imposed here and there, beyond the nature of the contract, by accessory pacts; they must be duly compensated at the judgment of the prudent.

NOTE that Soto de Iustitia, lib. 6. quaest. 5. art. 1. asserts that a census can be constituted even from money lent, but Lopez de comtrov. lib. 3. cap. 59. and Bartholomew of St. Foust in spec. disp. 18. quaest. 32. num. 2. deny it, he thinks more probably. Finally Diana admits the opinion of Soto only where the Bull is not in force.

I ASSERT with Valencia puncto 4. that a census can be sold both temporal and perpetual, provided a foundation exist, so that it can render the payment. And so the thing perishing, the census also perishes. Whence it comes about that it cannot be perpetual over a person or thing that will perish, but is made according to the state of the thing founding it.

Casas ADDS sect 4. that the purchase of a perpetual, irredeemable census can be made at a lesser price than the payments hoped for, and says this is common among the Doctors. The reason is, because a right is bought which is less than the payment.

On the SAME foundation he concludes sect. 5. that a census even for a time is licit at a lesser price than the quantity of the payments which are to be paid from it.

The CONDITIONS of natural law indicated above are those, which are multiplied by others. Tanner disp. 4. quaest. 3. num. 116. lays down four conditions as necessary by natural law.

The FIRST is that the census be founded on a fruit-bearing thing, which in due time renders its proportionate payment, either immediately or mediately, as Medina also teaches quaest. 21. de Usuris. Valencia quaest. 22. puncto 2. who adds with Soto lib. 6. quaest. 5. art. 2. from the common opinion that all the goods of the censualist, and also his very person, are bound to pay such a payment.

The SECOND is, that the census be bought at a just price. That is deemed just which by law, or by the judgment of prudent men, has been so much, considering the present condition of things.

AND indeed in the Empire, for a perpetual Census, or redeemable on the seller's side only, the legal price is five per hundred. But this law set aside, where it is not to be observed, the just price is seven per hundred, as Valencia notes quaest. 25. quaest. 1. puncto 2.

The THIRD condition is, that if the census-bearing thing perish or become sterile, no longer apt to bear so much fruit (without fault of the censualist), it perishes for the censualista, who receives the payment, a special pact of assurance being set aside, as Valencia teaches from the common opinion quaest. 23. puncto 2. Molina Tom. 1. disp. 390. and it is gathered from the Bull of Pius V. de Censibus. The reason is, because the thing perishes to its Lord. Since therefore the censualista is the Lord of the right to the payment, it ought to perish for him. Yet if the census-bearing thing is unfit for fruit for one or another year, the censualist is not freed from paying the payment, provided in the remaining years it bears so much as is necessary to pay the payment. Thus Sà V. census, and Valencia loc. cit.

The FOURTH condition is, that the census-bearing thing not be transferred to another against the will of the censualist, from whom the payment to be paid would be obtained with difficulty and less securely, as Scotus lib. 6. quaest. 5. art. 5. Valencia quaest. 22. puncto 7. Tanner. num. 122. teach. The reason is, because since the Censualista has a right to the census-bearing thing, that right ought not to be made worse by such a sale: They add, that burdens not be imposed beyond the nature of the contract; and if perchance they have been laid down, they must be duly defined by the judgment of the prudent.

FILLIUCIUS tract. 35. part. 2. cap. 1. numero 268. adds, the consent of the Censualista is necessary, and that the right which is sold be founded in a vendible thing. Bassaeus adds num. 3. that it be in the dominion of the censualista, and that if some burden is imposed on the seller, to which he is not bound by the nature of the contract, he be compensated with due payment.

BONACINA disput. 3. quaest. 4. puncto unic. and others lay down three conditions. First, that the one constituting the census have the free faculty of disposing of it. Second, that the census be founded on a fruit-bearing thing. Third, that, if the thing perish without fault of the censualist, the census cease pro rata; for the thing perishes to its lord.

But the JUST price is to be taxed by common estimation and the custom of the place; yet from the nature of the thing in an Irredeemable census, the price ought to be greater than in a Redeemable one, and in a Perpetual one than in a Temporal one, and in a Life one than in one constituted for a certain and determinate time.

AS TO the conditions designated by the most holy Pontiff Pius V.

The FIRST is, that a census not be founded except on an immovable thing. Whence censuses, even personal ones, are prohibited. And so it must be only in an immovable, fruit-bearing, and certain thing.

SECOND, that the payment of counted money be made before Witnesses present, and a Notary, and in the act of the celebration of the instrument, but not before the integral and just price has been received.

THIRD he prohibits anticipated payments.

FOURTH he prohibits all obligatory pacts for fortuitous cases.

FIFTH he prohibits the pact that the seller cannot freely alienate the thing subject to the census, or the paying of a Laudemium for obtaining the faculty of alienating.