Lotteries, gaming and wagering

618. Notions. 1. Aleatory contracts are called those whose object, that is, what must be furnished by one or by each contracting party, depends on an uncertain event, or on chance. Wherefore these contracts confer on the contracting parties not an absolute right in the object of the contract, but only the hope of receiving it.

There are aleatory contracts in which only that which must be furnished by one depends on chance or is uncertain, as in insurance, in which one must pay a certain thing, but the other must repair uncertain damage; there are others in which that which must be furnished by each depends on chance or is uncertain, as in wagering.

2. An aleatory contract differs from a conditioned contract in this, that in the latter the consent or the contract itself depends on an uncertain event, but in the former the object of the contract depends on an uncertain event; the contract itself is perfect and absolute.

3. Aleatory contracts are unilateral or bilateral, according as only one contracting party or each contracting party in a certain event obligates himself to furnishing something.

The aleatory contracts to be explained here are: a. wagering; b. game; c. lottery; d. insurance; e. stock-exchange speculations.

619. Nature. Wagering is a contract by which two or more persons disputing concerning the truth of a thing or concerning some event agree between themselves that some good belong to him who wins.

a. Therefore wagering by its nature supposes disagreement among the contracting parties concerning some truth, and a price is constituted for him who is going to attain the truth.

b. Wagering can be a unilateral or bilateral contract. If the first, it obliges either from fidelity or from justice, according as the one wagering intended to obligate himself; if the second, it obliges from justice, provided it has been entered seriously. In this last case those wagering mutually hand over to each other a right to the reward founded on hope of gaining.

c. From the nature of the contract it follows that he who wagers, or plays, without intention of obligating himself to paying contracts invalidly and therefore is not bound to pay, but neither can he accept and retain gain; but he who wagers, or plays, without intention of paying contracts validly and therefore is obligated to paying and can retain gain.

620. Wagering is a just contract: a. If on each side the reward which is wagered is equal, unless the other of his own accord wagers an unequal good of greater value;

b. If the thing is uncertain to each party, even if objectively in itself it is most certain.

Authors dispute whether he who is certain about a future event can enter a just wager. It seems that a distinction must be made thus: a. If someone manifests that he knows the thing certainly, and the other nevertheless wishes to wager, the wager is just. Yet in this case there is not an onerous but a gratuitous wager, by which the other promises that he will give something if the certain event has followed. beta. But if one knowing the thing certainly pretends that he at least in some way doubts about it, the wager is unjust: for the due equality among the contracting parties is lacking, since he who knows the thing certainly hands over to the other a hope of gain which is of no value, since he knows certainly that he is going to be the winner.¹

¹ Cf. Lugo, disp. 31, n. 78.

621. Wagering is a licit contract: a. If it is made concerning an honorable or at least indifferent thing; therefore illicit is a wager made, for example, concerning the fact that the other lacks courage to commit a duel: for it contains an incitement to dueling. Yet since the wager is just, when the duel has been committed, the thing promised by the wager can be retained as in a contract concerning a base thing, but it need not be furnished (n. 527).

b. If there is present a motive making the wager honorable. An end of this kind is honest recreation, an incentive for completing something or investigating truth. Yet since wagers, the same holds for games, often lack an honest end, and rather are made from vanity or prodigality or desire of becoming rich, and give occasion to innumerable abuses and frauds, in practice they are for the most part illicit.

c. If the good promised by the wager is not excessive: for in this case on one side there is committed a sin of prodigality, with which other sins are generally joined, whether against charity or against piety; and on the other side a sin of induction or at least of cooperation toward evil.¹

¹ From C.A. Section 1277 wagers do not produce a civil obligation; therefore the victor cannot require by civil action the good owed to him from wagering.

625. Nature. Lottery is a contract by which, when a certain price has been paid, a right is acquired of obtaining the thing exposed if the drawing of lots has favored.

a. Lottery is an aleatory contract, because one part of the contracting parties acquires nothing except the hope of obtaining by lot the thing exposed. Lottery differs from wagering in this, that wagering supposes disagreement of opinions among the contracting parties; but it differs from game in this, that game requires an occupation whose event is uncertain, but lottery requires the drawing of lots of an uncertain event.

b. By force of the contract there is immediately acquired the hope of obtaining by lot the thing exposed. This hope grows or decreases according to the smaller or greater number of those drawing lots. The same hope involves a conditioned right to the thing exposed, which, when the favorable drawing has been made, passes into an absolute right.

c. Since lottery gives occasion to many abuses, in most kingdoms it is prohibited by civil law, unless permission to institute the lottery has been obtained from competent authority.

626. For the justice of lottery there is required: a. Equality between what is given and what is accepted; and this equality is present when the price of the lot is worth as much as the hope of acquiring the thing exposed by lot is worth. To estimate the value of this hope it must be noted that it is so much greater, the greater the thing exposed is and the greater the number of those drawing lots is.

If it happens that in a lottery the price of the lot is greater than the hope of acquiring the thing exposed, and those who are about to draw lots, who know this, nevertheless freely buy lots for themselves, the buyers are considered to give the excess; this especially has place when the lottery is instituted for the utility of a pious cause.

b. There are those who for the justice of lottery also require this condition, that the profit received from the lottery be morally equal to the profit received by means of the same money from trade.¹ But others rightly teach that for the justice of this contract equality between the hope of gain and the price paid, and equality of danger among the participants, is sufficient.²

¹ Gury I, n. 943; Lehmkuhl I, n. 1137.

² Ballerini-Palmieri III, n. 926; Genicot I, n. 663.

In this chapter we will treat of certain contracts which depend for their effect of profit or loss upon some uncertain event.

A lottery is a distribution of prizes by lot or chance. Those who take part in a lottery ordinarily pay down a smaller sum of money in consideration for the chance of obtaining a larger sum or something of greater value, but it may happen that they lose by the transaction. The event is settled by the casting or drawing of lots in some form or other. English municipal law now prohibits lotteries where the distribution of prizes depends on mere chance, not on art or skill. The prohibition does not affect art unions carrying on business under a royal charter or under a constitution and rules approved by the Privy Council; but it does affect distributions of prizes on art union principles by persons other than art unions. However, inasmuch as a lottery is nothing more than the purchase of an uncertain chance, it is not necessarily unjust or in any way contrary to the natural law. If there is no fraud connected with the drawing of lots or the distribution of the prizes, and if the sum paid by those who take part in the lottery is to some extent proportionate to the chance of winning a prize and to its value, a lottery will be lawful as far as conscience is concerned, for the municipal law in these matters is penal.

Gaming is playing at any game, sport, or pastime for money or anything of value which is staked on the result of the game, so that it is lost or won according to the success or failure of the person who staked it.

Clerics are forbidden, as we shall see, to play at games of pure chance with scandal to others and loss of their own time. English law also makes all gaming contracts null and void so that they cannot be enforced in English courts of justice.

But here we consider the question not as affected by positive law, ecclesiastical or civil, but as it is in itself. Is gaming in itself morally wrong ?

Apart from abuse, to play games of skill or even of pure chance for a stake is not immoral. I may spend my money in moderation on recreation, or I may make a present of it to others if I choose. There is nothing immoral in agreeing to hand over a sum of money if I am beaten in a game either of skill or of chance. This perfectly lawful action will, however, become unlawful if one of the parties is compelled to play against his will, or if cheating and fraud are practised in the game, or if there is no chance of success on the part of one of the players (unless he knows this and freely consents to play in spite of it), or if the parties have not the money which they stake or at any rate not the free disposal of it on account of its being required to pay their debts or to support themselves and their families.

Moreover, although gaming in itself and under the conditions which have just been laid down is not immoral, yet it is a dangerous pastime for many, and easily leads to abuse, sin, and ruin. Especially is this the case when gambling is carried on in houses kept for the purpose, where all kinds of bad characters congregate. The keeping of such dens of iniquity is rightly punished by the law.

Wagering or betting is the making of a contract on an unascertained event, past or future, by which the parties are to gain or lose, according as the uncertainty is determined one way or the other.

Wagering contracts in general are not enforceable in English courts of law, although there are some exceptions to the rule, but here we consider the matter from the point of view of conscience, To make a bet is not sinful provided that the subject-matter of the wager is not sinful nor an incentive to sin, provided that the event is really uncertain for both parties, and provided that both understand the bet in the same way and are prepared to stand by the event and pay in case of loss. Even if one of the parties is certain as to the truth of the matter in question and he makes this known to the other, if the latter chooses to persist in his contention and stakes his money, the other will be justified in taking it.

What was said above about gambling is applicable also to betting. . Although it is not sinful to stake a moderate sum of money of which one has the free disposal on some unascertained event under the conditions laid down above, yet a strong and dangerous habit may easily be formed by indulgence in the practice, and then sin, misery, and ruin to self and others are not far off.

There are certain modes of gambling which are practised now on money and produce exchanges. Dealings in“ futures ” and “ options ” and “time bargains ” are for the most part merely speculative transactions, and do not differ essentially from betting as to what will be the price of stock or of some commodity at a future date. ‘‘ Rigging the market” and similar devices are means employed by operators to influence the market in their own favour. These means are, of course, unjust, and besides inflicting loss on competitors, they do great harm to outsiders by disturbing the natural prices of commodities, and not infrequently produce irreparable and far-reaching ruin.

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.

I. Notion. Wagering is a contract by which two or more persons, contending about the truth of some thing or about an event, promise a prize to him who will be shown to have attained the truth.

II. Condition required for the justice of wagering is that equality be preserved among those wagering as regards hope of the prize and danger of loss. Hence the truth of the thing or event must be uncertain to each. One who is certain of that about which there is contention cannot wager (St. Alphonsus, Homo Apostolicus, tr. 10, n. 214).

But what if one who is certain of the truth or event warns the other about his certainty, and the other nevertheless wishes to wager? With St. Alphonsus against many, it seems that it must be said that the wagering is unjust, because the prize is unjust in itself, and the other is not per se judged to yield his right to a just prize (St. Alphonsus, III, 879; Homo Apostolicus, tr. 10, n. 214). Make exception if the other sufficiently manifests that he consents to the prize, whatever it may be.

I. Notion. Drawing lots is a contract by which several persons, for a price given, receive a right of determining by lot who is to receive the prize.

II. The condition required for the justice of drawing lots is that the price given be just. But the just price is that which has regard both to obtaining the prize and to acquiring the hope of it. The greater the number of those who, by paying the price, acquire the right of drawing lots, the lesser the hope of each becomes. All things will be safe if the one instituting the lottery does not receive beyond the value of the prize or prizes exposed, of the industry and labor spent, and of the emergent damage from the fact that he did not use the thing or money exposed profitably. Make exception if the lottery is instituted for a pious work or for public utility; in that case the participants spontaneously give more than they receive.

Note. Public government lotteries are not illicit in themselves; nor practically do they seem so much to be condemned; since on the one hand it is contended, not without some exaggeration, that through them love of labor is extinguished and fortunes are consumed; on the other hand government lotteries diminish the frequency of private lotteries. For the rest, he certainly sins who exposes to lot money necessary for the family.

Sinful Contracts.—There is no form of contract that may not be made sinful as to its substance on account of the wicked offer or consideration (e.g., sale may deal with immoral objects, labor may be given to criminal projects), but there are certain forms of contract that are particularly open to abuse and hence are frequently associated with evil circumstances or results. Some contracts are often illicit according to natural law.

(a) Thus, a gift is sinful, on the part of the donor, when it is made by an employer for the purpose of seducing a servant, and on the part of the servant, when it is accepted for the purpose of encouraging the unlawful attentions of the employer; but if the gift is unconditional, there is no obligation in justice to return it.

(b) Borrowing is sinful, when the lender is in greater need, or when one becomes unduly obligated to the lender; lending is sinful when the lender cannot afford to part with the thing loaned, or when the borrower is encouraged in thriftlessness, or when he will make evil use of the thing borrowed, etc.

(c) Wagers are frequently sinful, since many of them are incitements to sin (e.g., a bet that another is afraid to get drunk), or results of sinful motives (e.g., bets made in order to deceive, or to satisfy avarice, or to live without work), or causes of great evils (e.g., destitution of families, frauds, scandal, and corruption).

(d) Gaming is sinful when the form of the sport is objectionable (e.g., the ancient gladiatorial fights in which the combatants killed each other), or when the motives or circumstances are wrong (e.g., to play as a professional gambler so as to avoid work, to play cards all day Sunday, to play for higher stakes than one can afford, to spend time in “gambling hells”).

(e) Lottery is sinful when the object is bad (e.g., the raffle of an important office with the risk that incompetent persons may be chosen), or when the circumstances are bad (e.g., if persons are led into superstition or idleness and prodigality).

(f) Speculation is sinful in many instances, since it often brings on a gambling fever that makes the speculator useless to himself and his dependents, and causes poverty and crime.

(g) Pawning of property is often unjustifiable, since it makes persons deprive themselves of necessary property in order to indulge in some useless or extravagant whim with borrowed money.

Negative Duties of Clerics.—The negative duties of clerics are the avoidance of certain acts, occupations, or amusements forbidden as worldly, undignified, dangerous, distracting or scandalous (I Thess., v. 22; II Tim., ii. 4).

(a) Forbidden Acts.—A cleric may not go surety without permission, lest he or his church be involved in scandalous embarrassments (Canon 137); nor engage in trade, lest he be distracted from his spiritual duties and exposed to the danger or suspicion of injustice or greed (Canon 142; for penalty attached see Decree of the Sacred Congregation of the Council, AAS, 42-33D).

(b) Forbidden Occupations.—These include, first, employments and pursuits unbecoming to clerics (such as those of butcher, actor, innkeeper); next, those that are incompatible with the ministry (such as the practice for profit of the medical profession, public magistracies, government jobs, civil court functions, legislative offices, Canon 139); finally, those that are contrary to the mildness that should distinguish clerics (viz, the occupation of fighting man or soldier, Canon 141; see also Canon 984 on executioners). But exceptions may be made for a just cause.

(c) Forbidden Amusements.—Clerics should not take part in undignified diversions or cruel sports, such as the hunting of big game with great uproar of dogs and guns (Canon 138) or in gambling, and they should not enter saloons or similar places (Canon 138). Clerics are also forbidden to assist at unbecoming shows, performances, dances, or at any theatrical entertainment where their presence gives scandal (Canon 140). To gamble much (say, several times a week and for a considerable time at each game) is considered a serious matter; but it is not sinful to indulge in a game of chance now and then, if the stakes are moderate and there is no scandal.

What is wagering? Wagering is a contract in which two or more, contending about the truth or event of some thing, mutually pledge something to themselves, so that it belongs to him who has attained the truth. C. A. 1270; L. 869; Lugo d. 31, n. 73.

Whether wagering is licit? - Wagering furnished with due conditions is of itself licit. For it contains nothing dishonorable, nor is it prohibited by any positive law. The required conditions are: 1. That it not be concerning illicit things; no obligation is given against morals. 2. That it be about a thing doubtful as regards each wagerer; otherwise chance is lacking, and equality is not given, unless one certain about the thing warns the other, and nevertheless the latter wishes to commit himself; for then a donation is presumed as in gaming. C. A. 1270, 1272. 3. That there be equality between the thing which is pledged and the uncertainty of the event, namely that he for whom the greater probability stands promise more, but he for whom the lesser probability stands promise less. 4. That each accept the thing in the same sense; otherwise they would by no means agree upon one thing. L. 869, 870, 878, 879; Lugo d. 31, n. 82, 83.

Whether wagering obliges? - Wagering obliges in conscience by natural law, as any other licit contract. C. I. 1892; C. G. 1965; C. H. 1799; C. B. 762; C. L. 1543: the same is established for wagering as for gaming. Cf. 1247. C. A. 1271: a wager made in good faith and otherwise licit obliges, insofar as not only a price was promised, but also handed over or deposited. But it cannot be sought judicially. Through the Bull of Pius IV In eligendis, wagers concerning the doubtful election of the Pontiff, or concerning his life and death, are prohibited. Gregory XIV, through the Bull Cogit nos, extended this to the election of Cardinals, with excommunication latae sententiae added as regards the election of the Pontiff, and reserved even outside the time of the vacant See. And because wagers of this kind are declared invalid, no obligation arises from them. L. 869.

What is gaming, and how many kinds are there? Gaming is a contract by which players agree among themselves concerning some certain thing or concerning a certain price that will fall to the victor. - There are three kinds: 1. Industrial, which is chiefly governed by the industry of the players. 2. Aleatory, which principally depends on chance. 3. Mixed, which partly depends on industry and partly on chance. L. 871; St. Thomas, 2. 2, q. 168, a. 2.

Whether gaming is licit and valid? - A contract of this kind, considered according to the law of nature, and if the due conditions are present, is valid and licit. The reason is that any owner of his own thing, just as he can dispose of it by giving it absolutely, so can hand the same over to another under some condition, whether that condition is fortuitous or depends on industry. L. 871. Moreover, that gaming, insofar as it is a simple relaxation of the mind, is licit is beyond all controversy. For as the body needs rest, lest it be weakened too much by labor, so the soul also needs rest, lest it be too much wearied by continuous meditation. St. Thomas, 2. 2, q. 167, a. 2. Considered according to the law of nature. For games of mere chance are prohibited by Canon Law. Dist. 35, can. 1. Yet as regards laymen, they say that Canon Law has already been derogated by custom. But as regards clerics, it is disgraceful for clerics to play dice. C. 15, de Vit. et honest. cler. Cf. V. 2, n. 179. By Roman Law certain games, namely of dice and fortune, were prohibited. L. 1, 3, C. de Aleatoribus et alearum usu. By the same Law those who had been beaten in forbidden games could not be sued so that they should pay, and if they had paid, they had an action of recovery. Wherefore the payment made by the loser was not invalid, but was to be invalidated by the judge. But because these laws were penal, or were held as penal, by use and custom, hence, with attention to Roman Law, it is most probable that laymen playing would not sin even venially. L. 883-885; Lugo d. 31, n. 8. According to C. L. 1541 seq., gaming as a means for making profit is not permitted. What someone has gained in gaming he cannot seek judicially. If nevertheless he has paid it, he cannot recover it, except in the case of fraud or deceit on the part of the victor, and of a game of mere chance, commonly di azzardo. And what is lent in the act of this game of mere chance likewise cannot be recovered. According to C. A. 1272, what has been established for wagering is applied to games. Cf. 1244. But all games of chance are held as illicit, and it is declared that they bring forth no obligation. Nevertheless an action of recovery of what has been paid is denied.

According to C. I. 1802-1804 and C. G. 1965, 1967, there is no prohibition of any game. Nevertheless it is established that the law gives no action for exacting payment of that which is owed because of gaming or wagering. Games which contribute to exercise of the body are excepted, such as handling of arms, racing either on foot or on horseback, ball games, etc.; for these an action is granted. Yet it is within the power of the judge even in these to deny the action if the sum deposited for the game or wager has been exorbitant. But if the loser freely paid, he cannot recover what was paid, provided fraud or deceit of the victor was absent, and the loser is not a minor, or interdicted, or declared incapable. According to C. H. 1798-1801, games of mere chance are prohibited, and no action for them is granted to the victor; nevertheless no action is granted to the loser to reclaim what was paid, unless deceit intervened, or he is a minor or made incapable. And the same is established for wagering. Wagers which have analogy to these games are prohibited. Games which contribute to exercise of the body are permitted, as in C. I. and C. G.; and for these games and analogous wagering an action is granted; nevertheless the judge can reject the petition, or reduce the sum owed, if it is excessive. According to C. B. 762, gaming and wagering produce no obligation. But what has been paid cannot be recovered.

If the due conditions are present, which as regards validity are: 1. That the things exposed to the game are proper to the player, and in his ownership, and in his free faculty of disposing; otherwise the contract will be either null, or rescindable, or at least the payment made by the loser will be invalidable. 2. That all force and fraud be absent; hence it is necessary that the players concur freely, and indeed that there be moral equality among them in hope of gaining and in danger of losing. - But for liceity it is required: 1. That nothing dishonorable be mixed in by words or deeds. 2. That there not be present from it proximate danger of sinning, for instance of breaking out into blasphemies, or harm to neighbor, for instance of neglecting care of domestic affairs, of making oneself unable to pay debts or to feed a family, etc. 3. "That it be suited to the person, time, and place, and be duly ordered according to the other circumstances." St. Thomas, 2. 2, q. 168, aa. 2, 3, 4; L. 882;

Lugo n. 28.

Resolutions: If someone gains by exposing stolen money to gaming, apart from which he has nothing else that he might hand over, then he is bound to restore what he has gained, because the contract was null, since he exposed money which the co-player could not acquire. But if he has other money, it makes no difference at all that he stole the money from the one playing with him or from another. Since he was equal in solvency, he will indeed be able to retain the profit, for it is the fruit of his own industry; but the obligation always remains of rendering to another what was taken from him by theft. - L. 875.

Whether someone is bound to restore what he has gained from a son of a family in gaming? - Resp. Negatively, if the sum lost by the son of the family is from his own goods, of which he has perfect ownership. Affirmatively, if the sum lost is from the father's goods, or from his own goods of which he himself has only direct ownership. Except unless the sum is of small moment, in which the consent of the father is presumed, who would not wish to deny honest recreation to the son, or unless it is some moderate part deducted from the food which the father supplies to him. "Nevertheless it is probable that in that case, if the son of the family does not wish to pay what was lost in the game, he can licitly oppose the exception and is not bound to pay, reserving something from his food." L. 876, 871-873.

Whether a victor who is much more skilled in a game, so that he certainly foreknows that he will be victor, is bound to restore? - Resp. Affirmatively, much more probably, because the equality required among players is lacking, and therefore justice is injured. Hence one notably more skilled must withdraw from the game, or remit something of advantage to the adversary. Thus the more common opinion, against some. Yet in practice restitution should not be urged if the matter concerned a thing of lesser moment; or even when the adversary, sufficiently warned, nevertheless stubbornly wished to play. Then no deception would have intervened. - According to C. A. 1270, 1272, in wagering and in gaming, if the defeated party was previously conscious of the event, donation is presumed. But it is otherwise in public games. For in these the prize is promised to him who excels the others. L. 881.

Whether, according to the law of Roman Law, a victor in a prohibited game is bound to restitution, or the loser is bound to pay in the same game?

Resp. To the 1st: Negatively before the sentence of the judge, because by positive law the contract is not declared invalid, but only illicit, and an action to recover is given to the loser. Resp. To the 2nd: The first very probable opinion affirms. The reason is that by natural law the contract was valid, and therefore the loser is bound to stand by it until he judicially opposes an exception or seeks restitution. The second and more probable opinion denies. The reason is that the law, by giving to the loser a right to defend himself by exception or by recovery of what has been paid, also gives an absolute right not to pay. For to what purpose is someone bound to pay, if he can immediately recover what was paid? According to more Recent Laws also the victor is not bound to restitution, and the loser is bound of himself to pay, since the game is not prohibited by the aforesaid laws nor declared invalid, unless force or deceit intervened. But if the game is prohibited by the same laws, it can perhaps be sustained not improbably that the laws implicitly removed the obligation of paying, since the judge could not urge it by his own sentence. - L. 887-894. Cf. here 1247.

Whether gaming is valid if a large sum of money is exposed at one time? Resp. The first opinion denies. The reason is that because of prodigality the game is base. The second opinion affirms, of itself, more probably, if the players are able freely and fully to dispose of their goods without detriment to family and creditors, because the players then freely dispose of their own goods, and knowingly and willingly undergo danger equally; and therefore there is no injustice. Nor does the reason of prodigality press; for it is also base to play from the greed of profit alone, although this greed, as that prodigality, of itself is only light. Yet who would say that a game is invalid because the players are moved by desire for profit? Moreover profit can well be illicit without being invalid. Yet, practically speaking, they do not seem to be disturbed in the tribunal of penance who would not wish to pay a large sum which they had lost. And this either by reason of good faith, not to be disturbed, or because by positive Law the judge can reject the petition when the matter concerns games approved by the law itself, but the sum agreed for the game is excessive. Cf. 1247; C. I. 1803; C. G. 1966; C. H. 1801; C. B. 762; L. 735; Gousset 889.

Whether one who uses fraud while playing is bound to restitution? "He is not bound to restore who uses those clever tactics which the rules of the game and received custom allow, since each knows that such tactics are customary, and thus tacitly and freely consents to them; e.g., 1. If, having stronger cards and being sure of victory, he increases the wager, or simulates fear, so that the adversary increases it. 2. If, knowing that he has lower cards, he dissembles and increases the wager, so that what had been placed may thus be left to him. 3. If he looks at the cards of another from that one's negligence alone and without fraud; otherwise, if he places himself so that he can see, or appoints another by whom he may be warned. 4. If while playing he learns to know cards from the back, which he had not previously marked nor known. But he who uses frauds not customarily employed, or unknown to the co-player, e.g., steals cards, or marks them with signs on the back, or uses marked cards, or those which he knew beforehand while the partner is ignorant, or by some art arranges them, etc., is bound to restore not only the profit, but also as much as the hope of gaining, indeed even of playing with him, was worth to the other." L. 882, 877.

Whether, if someone injuriously compels another to play, he can afterward retain what he gains? "The first opinion denies, because damage following from an injury must altogether be restored.... But the second opinion affirms that he can retain it, because then not the coercion or the game, but rather chance or the skill of the one coercing was the cause of the damage.... This opinion, speaking of itself, is more probable to me, unless the co-player who coerced surpassed the one coerced in skill at playing; for in that case I think he is bound to restitution of at least part of what was gained, according to the measure of skill by which he excelled the other. The reason is that that contract, notwithstanding the injury of fear inflicted, was sufficiently voluntary on each side, and valid, according to the more common opinion reported.... I said, speaking of itself, for if the one who suffered fear seeks restitution of the money lost, Lessius rightly teaches that the one inflicting fear is bound to restore what was gained." L. 880; St. Thomas, 2. 2, q. 32, a. 7, ad 2, etc.

But what if someone compels only by importunate requests? - "Sanchez, etc., still hold that he cannot retain it. But Lessius, etc., far more probably contradict, because requests do not remove the voluntary, just as threats do not; as Busenbaum asserts from the common opinion with Bannes and Molina." L. 880.

What is a lottery? It is a contract by which, several persons paying money toward a certain thing or toward a certain sum of money placed in the middle, a right of drawing lots is acquired; whence, once the drawing has been made, some have the whole proposed prize, some a part, some nothing.

Whether a lottery is licit? Resp. Affirmatively of itself. For a lottery can be regarded as the sale and purchase of hope and of the right to a certain prize to be acquired by drawing lots. But as it is licit to bargain concerning the danger of some thing, so also it is licit to buy hope and the right to some thing. It is said of itself; for accidentally from extrinsic circumstances it can become illicit, e.g., if from it a family were to be thrown into misery. C. A. 1267, 1269. According to C. B. 763, a lottery does not induce obligation unless it has been approved by the State; otherwise, the dispositions established for gaming and wagering are applied to it. Cf. 1247.

What conditions must be observed in a lottery, lest it become illicit? The first condition is that there be no fraud in drawing the tickets, nor in paying the prize which has fallen. The second condition is that proportion be preserved between the smallness of the price and the greatness of the uncertainty of the hope, and at the same time with the greatness of the prize, and, in a public lottery which is constantly repeated, with the greatness of the danger to which the owner of the lottery is exposed, so that he can always satisfy future victors. There are some who add a third condition, namely that the profit in the lottery not exceed that which would be had in honest business if the money were spent in it. But this condition is established by no reason, since then the profit received in any aleatory contract, and generally the profit received in gaming, would be illicit. For this is proper to these contracts, that uncertain chance intervene, to which the contracting parties voluntarily subject themselves; and, when chance favors, it often happens that someone receives in a short time a profit which even in a long time his own industry would not produce.

C. A. 1273, 1274.

What are stock-exchange games? Stock-exchange games are commonly called certain business and mercantile operations which are ordinarily made in the money market through intermediaries, who are called exchange agents. They are called games because titles of public revenues are sold and bought, which, according to various circumstances of society and governments, have varying value; whence the aforesaid operations are aleatory, and a certain wager intervenes concerning the variety of values of this kind, namely concerning their increased or diminished price. But they are called stock-exchange games from the public place, or money market, which is called the stock exchange.

Whether stock-exchange games are licit? - Various stock-exchange games, more or less complex, are reduced to the following simple mercantile and business contracts. 1. Someone buys a title, e.g., of 1000 lire, at the current price, and with counted money of 900 lire. The annual revenue of the title is 50 lire, namely at the rate of 5 per 100. Through days, through months, through a year, through several years, the buyer receives the aforesaid revenue. Certainly nothing illicit is present in this matter, for it is a certain simple purchase, or a simple consignative census, or a simple constitution of revenue. But if the buyer, when a good occasion is offered and seized because the price of public revenues has increased, sells the title of that annual revenue of 50 lire, at the current price and for counted money, for 1100 lire, he indeed receives a great profit, but again there is nothing illicit in this matter; for it is a certain simple sale, and the profit is owed from the changed price of titles in the market. And if someone, intending this profit, buys several titles of annual revenues at the current price and for counted money when the price is lowest, so that he may resell them for counted money when the price is highest, business properly is had, which of itself has nothing illicit.

2. If someone again buys a title of annual revenue of 50 lire at the current price of 900 lire, not for counted money, but on credit to a term, e.g., for fifteen days, for a month, then either the title is immediately given, or only when the term arrives, or the fixed day, which day is called the day of liquidation: the first, the fifteenth of the month. If the first occurs, nothing is had except a certain purchase made on credit, by which the buyer can profit if on the appointed day the value of the title increases, or on the contrary the seller can profit if on the appointed day the value of the title decreases. Nothing indeed illicit is in this matter. But if meanwhile the seller demands the legal interest of the money until the price is paid, he can do this by right, since it is not equitable that the buyer retain the thing and the price for himself and enjoy the utility of both. Then sale and purchase and mutuum intervene at the same time, or a simple mutuum.

If the second is verified, then the danger of detriment is equal for buyer and seller, and likewise the hope of profit is equal for both; for meanwhile the value of the title can increase and can decrease. Therefore when the day arrives on which the seller must hand over the title and the buyer the price, if the value of the title has increased, the profit will belong to the buyer; if the value of the title has decreased, on the contrary the profit will belong to the seller. Therefore, since equality of both is preserved, nothing illicit is had here of itself.

3. The seller and buyer likewise make a contract to a term or to a day, but the seller does not hand over the title to the buyer in the present, nor does he oblige himself to hand over the title to the buyer when the day arrives. Similarly the buyer neither hands over the price to the seller in the present, nor obliges himself to hand over the price of the title to the seller when the day, or the constituted term of the contract, arrives. Therefore the seller and buyer oblige themselves, when the day arrives, only to hand over the difference of the value or price of the title in the present, or today, and of the value or price of the same title on the constituted day. It is therefore a certain wager concerning the increase or decrease of the price, in which again equal danger and equal hope exist for seller and buyer. For if, when the day arrives, the value or price of the title has increased, the buyer gains this difference of value, to be handed over to him only by the seller without the title. But if the value of the title has decreased, then the seller gains that difference of value, which the buyer alone must hand over to him, without the remaining price of the title, namely the excess of the former price constituted on the day of the contract over that lower price which the title obtains on the established day. Wherefore neither is anything illicit of itself had here, just as nothing illicit would be had in the simple contract of wagering concerning an increase of the value of the title on the part of the buyer, who hopes that it is to be increased, and therefore buys; and concerning the diminution of the value of the title on the part of the seller, who fears it, and therefore sells. But this contract would be illicit if someone certainly knew, by private knowledge, that the value of the titles was soon to be increased. For then by the contract someone would give nothing to the other; he would not give the right to profit if the price were diminished, which would be altogether fictitious. And although the other is ignorant of this, that false and empty right does not for that reason cease to be such, since the price is certainly to be increased and the other certainly knows this.

4. The buyer, buying a title, with only part of its price immediately paid, to a term or to a day, reserves to himself the right, when the day arrives, either of demanding execution of the contract, or of withdrawing from the contract, leaving to the seller that price already given. Since the right which the seller grants to the buyer is appreciable by a price, this contract is just if the price is proportionate. The proportion of this price depends on various circumstances and on the varying concurrence of sellers and buyers. The right of rescinding the contract is sometimes conceded to the seller himself, with a premium left to the buyer. This conditioned purchase and sale is called operation with premium; the two preceding ones are called operations to a term.

5. A mercantile relation, or reportus, is a certain species of retro-sale. It consists first in selling for a lower current price, immediately paid, any titles which are sold in the money market, and immediately redeeming the same at a price to be paid at a term, or on a day, but higher. C. I. Comm. 73. Here also no illicitness of itself appears; for there is a double sale of the same thing, or the sale of a thing with its immediate retro-sale, and if due equality of price is preserved, certainly there is no injustice. In the second sale, or in that immediate retro-sale, the thing indeed is sold at a term for more than it was bought. But this arises from the fact that within a short time the price of these titles is changed according to common estimation. But from the fact that the thing will probably be worth a certain amount on the constituted day, the seller can take the norm of the price. Wherefore this second sale, or retro-sale, is an aleatory contract by which both the seller and the buyer can profit, namely if the price of the title, on the constituted day, has grown or decreased still more than the price foreseen by the seller and to be paid by the buyer. Gur. Cas. 946-950. According to C. B. 764, the contract of paying by the loser to the gainer the difference between the agreed price of merchandise or of a monetary title and the price at the time of delivery is considered as a game. Cf. 1247.

What is insurance? "A contract of insurance is that by which someone takes upon himself the danger of another's thing, obliging himself either gratuitously or for a certain price to compensate it if it perishes. But if this is done gratuitously, it is a gratuitous promise; if for a price, it is as it were a purchase, by which the insurer sells his obligation of furnishing to another his thing unharmed. For its justice it is required that the event of the thing be uncertain to each, at least as regards the knowledge which they have concerning it, because otherwise equality is not preserved." L. 911. For the same reason it is likewise required that the insurer be equal to paying what he promised if the thing perishes, and that on the part of the insured the price be proportioned to the danger.

Nor indeed according to C. I., C. H., C. G. can someone insure the same thing for its whole value with several insurers. Nor can he insure it for a quantity exceeding the value of the same thing. According to C. H. 1795, this agreement is ineffective for such a part. Lugo d. 31, n. 97; C. I. Comm. 417, 426, 429, 430, 431, 433; C. A. 1288, 1289, 1291; C. H. 1791, 1792, 1795, 1797; C. G. Comm. 346, 348, 357, 359; C. L. 1538, 1540. Insurance is treated in the Italian Commercial Code, for it is considered as the object of commerce; whence nothing about it is in the Civil Code.

According to C. I. Comm. 417, insurance is a contract by which the insurer obliges himself, by means of a price or premium, to repair detriments and damages which can come to the insured from certain fortuitous events, or from superior force, namely that which cannot be resisted, or to pay a sum of money according to the duration or events of the life of one or several persons. Hence all immovable and movable goods and life itself can be insured. - The contract of insurance must be made in writings, C. G. Comm. 332; C. H. 1793, 1794; C. I. 420. Insurance of life is entirely different from a life census. For it is a contract by which someone obliges himself to pay each year, during his life, a certain determined pension, and another obliges himself to pay a certain determined sum, after his death, to his heirs.

Resolutions: If the insurer is certain that the thing is already safe, he unjustly seeks the price and is bound to restore. If the insured certainly knows that the thing has already perished, he cannot make a pact concerning its insurance. Likewise, if he himself was the cause that the thing perished in order to obtain the premium of insurance, he is bound to restitution. L. 911; C. I. Comm. l.c.; C. G. Comm. 348; C. A. 1290, 1291; C. H. 1797.

What are the obligations of the insurer? - 1. The insurer must be solvent, C. I. Comm. 433; C. G. Comm. 346. But the insurer can cause another to insure his pledge. C. I. Comm. 422; C. G. Comm. 342.

2. The insurer must furnish compensation for detriments and damages which happen to insured things from fortuitous events or from superior force. But he by no means must furnish compensation for detriments and damages which arise from a defect inhering in the thing which was not declared, nor those which are owed to the action or fault of the insured, or of those acting in his name, or of agnates or cognates who are named in the instrument; nor furnish compensation for damages produced from war or from popular tumult, unless a contrary agreement existed. C. I. Comm. 434. Cf. C. G. Comm. 350 ff.; C. A. 1290.

3. Insurance against fire embraces all damages inflicted by fire, from whatever cause it was produced, except what has come from grave fault personally imputable to the insured himself, and except the case of war or popular tumult. C. I. Comm. 441.

4. The insurer is freed from the obligation of paying when by an act of the insured the dangers are changed or aggravated, by the change of some essential circumstance, so that the insurer would not have given consent if it had existed from the beginning. C. I. Comm. 432.

5. If a third party inflicted damage, the insurer who repaired the damage has an action against him. According to C. I. Comm. 438, the insurer who repaired the damage is substituted into the rights and actions of the insured. But the latter is held concerning every detriment brought by him to rights of this kind. But, setting aside this law according to which the contract of insurance is understood, although, speaking of itself, the insured has been made indemnified by the insurer, for that reason the damager is not freed from the grave obligation of repairing the damage of the one damaged. Nor does he satisfy this obligation by distributing the sum to be restored among the poor, or by spending it on pious causes; for thus the right injured by him is not repaired. Neither the poor nor pious causes were damaged by him. But what the insured receives by force of the contract of insurance, and of the price paid for it, does not exclude the right by force of the real injury inflicted on him from the damaging. The titles and rights are quite diverse. Speaking of itself; for by force of the preceding law and of the contract of insurance, understood according to its norm, it suffices that the damager compensate only the insurer for the damages; and consequently what the damaged person has received from the damager he is bound to hand over to the insurer.

1. Philippus plays cards with Iosephus, most skilled in the game, although he himself knows his own lack of skill, nor is Iosephus ignorant of it. Nevertheless he plays daily, and daily loses now four, five lire; now nine, ten lire.

2. Ioannes, playing cards with Iacobus, lost fifty lire, which he paid, ignorant of the civil laws, which concede no action.

Hence he thinks of reclaiming from Iacobus what he paid, and secretly compensating himself, if Iacobus refuses to return what was paid.

Q. What as to the case?

R. 1. Neither is Philippus held to pay the money promised in the game, nor can Iosephus receive it. The reason is that, since in the case one is subject to no danger of damage because of his skill, and because of the other's lack of skill, there is lacking, as it were, the thing which is bought by a price in a game, namely the uncertain hope of profit with the danger of damage on both sides. Nor is it valid to say that Philippus prudently and knowingly plays, knowing his own lack of skill, because the thing is still lacking, just as even if someone knowingly buys glass, but buys it as a precious gem, the thing is lacking, and there is no sale. But if Iosephus had sufficiently forewarned Philippus, and nevertheless he obstinately wished to play, restitution would not have to be urged in practice, because there would be absolutely no deceit on the part of Iosephus, but Philippus, forewarned and still playing, is judged spontaneously to renounce his right. I. M. 1247, 1350; G. 1028.

2. Ioannes cannot reclaim from Iacobus what was paid, nor consequently can he compensate himself in any way. The reason is that, although from games no action is given by the laws, nevertheless no reclaiming of what was paid is conceded. - And hence it is plain that one is held per se to pay what he lost in a game. For the contract is void neither by natural law nor by the positive law itself. - But what if Ioannes is a son under paternal power? In such a case reclaiming is conceded to him. I. M. 1247, 1249, 1251; G. 1021, 1024.

3. Fidelis made suretyship for Felix. Unhappy Felix is compelled to make a cession of goods. Before this happened, Fidelis admonishes the creditor of Felix to constitute a mortgage over his goods, and thus render his credit secure. But when the creditor neglected to do this, and Felix has now ceded all his goods, he now demands payment from Fidelis. Is Fidelis held to pay?

R. Negatively. For, since the creditor was admonished at an opportune time concerning the unstable state of Felix, he could obtain his credit through a mortgage. Since by his own fault he neglected to do this, he himself is the cause of his own damage. Besides, the surety is not held to paying except subsidiarily, in default of the principal debtor; namely, if he does not pay, after first being pursued by the creditor, when the debt is already mature, C. I. 1907; C. G. 2021; and when the debt is not yet mature, if by the act of the creditor himself there can no longer be place for subrogation into the mortgages and privileges in favor of the surety himself. C. I. 1928; C. G. 2037.

4. Azor and Paulinus were disputing about the ownership of a certain house, and the lawsuit was being conducted in the tribunals for several years with great expenses for each. Finally, by mutual consent, they determine to cease from the lawsuit, and that Azor keep for himself the upper part of the house, Paulinus the lower. This private transaction having been made, Azor, looking through the old writings of his family, finds an authentic contract of sale of the house, by which it was established that the father of Azor had bought the house from the father of Paulinus, and that the whole price had been paid to him.

Q. Can Paulinus keep the part of the house?

R. Negatively. For from C. I. 1777, a transaction is null when it regards only one object, and a new document found proves that one or the other party has no right over the same object. From C. G. 2057, a transaction of this sort is also null. For truly it is not reasonably presumed that the parties wish to consent to a transaction even in the case in which there is present a certain and evident document and right proving one of the parties. The transaction then would not truly be founded upon a doubtful matter, but upon ignorance, or upon error concerning a thing altogether certain. I. M. 1283; G. 962.

940. • They are of various kinds: insurance, wager, lottery, or raffle, and game. They are called aleatory because they are liable to the vicissitudes of lot.

Wager is a contract by which several persons, contending concerning the truth or the event of some thing, promise something to one another, or deposit it with someone, so that it may belong to him who has spoken the truth.

942. Questions. - Q. 1. Whether the contract of wager is lawful?

Resp. Affirmatively, with the things to be posited having been posited; for it bears nothing dishonorable before itself. - St. Lig. n. 869, and others commonly.

Q. 2. What are the conditions that a wager be lawful?

Resp. 1. That the matter be understood by each party in the same sense; 2. that there be an intention of obliging oneself and of paying what is promised; 3. that the event be uncertain to each party. - See Cases, n. 1017.

Lottery is a contract by which several persons deposit something in common, so that they may have a right of drawing by lot the thing set forth in the midst. Some have the whole, some a part, some finally nothing.

943. Questions. - Q. 1. Whether lottery is a lawful contract?

Resp. Affirmatively, provided the required conditions are present. The reason is that lottery can be regarded as the purchase of an uncertain thing, or as a contract by which with money is bought the right of drawing by lot and acquiring that which shall have fallen by lot. Moreover, it is lawful to buy an uncertain thing, just as to make an agreement for the risk of some thing.

Q. 2. What are the conditions required that lottery be a contract lawful in itself?

Resp. They are 1. that there be no fraud in drawing the tickets, nor in paying the prize which has fallen; 2. that the owner of the lottery not exceed in profit, nor morally gain more than if he expended his money or distributed his goods by another lawful contract. Nevertheless the profit can be greater if the lottery has been instituted for a good work or public utility. - Thus commonly.

944. • Game is a contract by which those playing agree among themselves that the price which they have staked yield to the victor. - Game is threefold: 1. industrial, which is chiefly ruled by the skill of the players, as the game of ball and of disks; 2. aleatory, which chiefly depends on chance; 3. mixed, which partly depends on skill, and partly also on chance, as, for example, the game of cards, at least for the most part.

945. Questions. - Q. 1. Whether every species of game recounted is lawful?

Resp. None of the three aforesaid games is illicit of itself, if the due conditions are observed. The reason is that game per se 1. is not repugnant to morals, since it is an honorable recreation; 2. nor to justice, since anyone can transfer ownership of his own goods to whom and in what manner he wishes.

Formerly aleatory games were prohibited to all by Canon law, especially to Clerics; but these laws, with respect to laymen and even with respect to Clerics, have almost gone into desuetude.

946. • Q. 2. What are the conditions required that game be lawful?

Resp. It is required 1. that the player have free administration of the things which he stakes; 2. that fraud and deceit be absent from the game; 3. that on each side the danger of losing be morally equal; 4. that the game be honorable in itself, and not prohibited by law; 5. that coercion be absent by which someone is induced to play; 6. that an immense sum not be staked, such that the family and creditors could suffer damage from it.

947. • Q. 3. Whether the victor who is much more skilled in the game, so that he knows certainly beforehand that he will be victor, is bound to restore?

Resp. Affirmatively, much more probably; because the equality required among the players is lacking, and therefore justice is injured. Hence the notably more skilled person ought to withdraw from the game, or remit some advantage to the adversary. - Thus more commonly, against some.

Nevertheless, in practice restitution would not have to be urged if the matter treated were of lesser moment; or also when the adversary, sufficiently forewarned, nevertheless had obstinately wished to play; because then no deception would have intervened.

948. • Q. 4. Whether the victor in a prohibited game is bound to restore, or the one conquered in the same game to pay?

Resp. to the 1st. Negatively; because the contract is not declared void by law, but only illicit. - St. Lig. n. 887. Antoine, q. 5. - Lugo, D. 31, n. 60. - Lacroix, n. 1086, and others commonly.

Resp. to the 2nd. It is disputed. I. OPINION denies it; because the law by prohibiting such a game seems by that very fact to take away the natural obligation of paying as a penalty of the victor. - Thus Lugo, D. 22, n. 300. - Salmant., c. 4, n. 62.

II. OPINION affirms it, because the contract was valid by natural right, and therefore the conquered person ought to stand by it until he judicially seeks restitution. Each opinion seems probable. Yet St. Lig. n. 890 says the first is more probable.

949. • Q. 5. Whether it is valid if a great sum of money is staked at one time?

Resp. Affirmatively, per se, more probably, if the required conditions are observed, that is especially if the players are able freely and fully to dispose of their own goods, without detriment to family, creditors, etc.; because the players equally undergo the danger knowingly and willingly, and therefore there is no injustice. But the aforesaid conditions easily fail; and otherwise, even if such game were not against justice, at least it is opposed to honorable conduct; whence a prudent Confessor, by way of satisfaction, if it seems opportune, could enjoin on the penitent victor that he spend some part of the gain for pious uses. - Antoine, c. 11, q. 5. - Bouvier. - Gousset, n. 889.

Nevertheless, since this opinion is not certain, those do not seem to be disturbed in the tribunal of Penance who would not wish to pay a great sum which they had lost. - Thus rightly Gousset, ibid.

950. Conclusion. - Although game for the most part is lawful in itself and serves honorable recreation, due moderation in its use is to be commended as greatly as possible, lest it easily be turned aside into detestable abuses. For how many evils proceed from it daily and all too lamentable experience proves! For how many, alas! most wretched youths, and also men of every condition, are seen who, devoted to game, suffer the loss of an entire fortune in a few days or hours, plunge their family into hardships, and themselves wallow in every kind of disgrace! Therefore let Parish Priests and Confessors strive according to their powers to turn away subjects and penitents from fury of playing of this kind, and let them be solicitous lest those refusing to obey be admitted to the Sacraments. - Thus rightly concludes Gousset, n. 891. - See Cases, n. 1021 and following.

END OF THE TREATISE ON CONTRACTS.

101. • A game of dice is said to be one which is situated wholly in pure lot, and whose outcome depends on mere chance, without the player's industry obtaining any part in it: such, for example, is the game of dice.

Games of dice are severely prohibited to clerics, at least those constituted in major Orders and beneficed persons. This is established 1º from the Fourth Lateran Council, canon 16, where it is said: "Let clerics not play at dice and games, nor be present at games of this sort"; 2º from the Council of Trent, sess. 22, ch. 1, De Reformat.

With laws of this sort considered, he who, initiated in sacred Orders, indulged in games of this sort for the sake of gain and much, was commonly held guilty of grave sin. - St. Ligorius, bk. 3, n. 896. - But from present custom the prohibition of the ancient Canons seems greatly tempered.

At present, according to many, a cleric is judged immune from every sin who plays sparingly, moderately, privately, and without scandal at dice and cards, however much the outcome depends on fortune, if he plays where the aforesaid Canons are not rigidly observed. - St. Ligorius, n. 899. - A fortiori he would be free from every fault who for the sake of recreation and without scandal would recreate himself with those games; for example, if there is no gain or the least gain, or if the gain is assigned to the poor, because custom in this way has interpreted the sacred Canons.

102. • QUESTION. Is any card game whatsoever judged aleatory?

Resp. No. For a twofold card game must be distinguished. One is of pure lot and altogether aleatory; but another is mixed, or partly aleatory and partly depending on the skill or industry of the player. This latter kind of game is not to be held as illicit of itself, if it is played moderately, without scandal, and for a small quantity of money, unless nevertheless it is prohibited somewhere by special law; for thus the interpretation of the law and universal custom bear. Yet clerics should take care lest in playing they be carried away to excesses, levity, and dissipation of mind, and also to the affection of cupidity or passion. It is especially expedient that they generally abstain from playing with seculars, unless these are men of uncommon prudence and gravity; because otherwise their holy ministry will easily suffer detriment, and sometimes grave detriment. Above all they must beware of waste of time, and as much as possible of the scandal of the faithful.

914. Aleatory contracts, so called from the die (coup de de), are those in which that which is given or promised by one or each contracting party depends on an uncertain event. - For sometimes uncertainty exists only with respect to one contracting party, - as in insurance, in which one pays a certain thing, while the other obliges himself to repairing an uncertain damage; but sometimes what must be furnished by each depends on chance, as in gaming. - But the event can be uncertain in a twofold way, either because it is future, or because it is unknown, although present or past.

From this it follows that an aleatory contract differs much from a conditional one: for the latter does not exist unless the condition has been fulfilled, while the former is firm and absolute, although it is uncertain whether or which of the contracting parties ought to furnish something.

The principal aleatory contracts concerning which we must treat are: 1. insurance, in which for a certain price a right is acquired to compensation for possible damage; 2. gaming and wagering, in which a certain price is attributed to the victor; 3. stock-exchange speculations, which approach gaming, insofar as they bring a determined or indetermined gain to one of the contracting parties and damage to the other.

922. I. On gaming. 1. Here the matter does not concern gaming insofar as it is relaxation of the mind, or bodily exercise ordered to the recreation of the mind; but that in which those playing agree concerning a certain price to be handed to the victor as a prize.

Gaming can be threefold: aleatory, whose outcome depends altogether on chance, as in the game of dice; industrial, in which the event depends chiefly on the skill of those playing (billiard, or baseball); mixed, whose outcome depends partly on chance and partly on skill, as a game of cards.

923. 2. Its liceity. Honest gaming, in which only a relatively modest sum is exposed to the risk of chance, and to which those playing do not give themselves frequently or for long, but only for the sake of useful recreation, is altogether permitted by natural right. For, on the one hand, relaxation of the mind is licit in itself, indeed often morally necessary, - and, on the other, games in which no price at all is exposed grow languid. - But if the sum of money is notable relative to those playing, and especially if the game is played frequently and for long, sins of prodigality, imprudence, idleness, and sometimes drunkenness are committed, insofar as the victors rejoice in cups and the vanquished seek solace in wine. Moreover those who expose money necessary for the support of the family sin against charity and piety. - But it is chiefly to be feared lest a habit of gaming be contracted, and those playing, leaving honest labor, give themselves wholly to dangerous speculations; for immoderate gaming easily excites vain hope and an inordinate desire of gaining money without proportionate labor. Wherefore priests ought diligently to watch lest penitents or parishioners, especially the younger, become accustomed to these games.

924. But here we must inquire especially what conditions are required so that gaming may be immune from injustice. Now there are four principal conditions of this sort: -

(A) That those playing can freely dispose of the goods which they expose: for they cannot expose to the risk of chance things belonging to another, or things of which they do not have the administration, or money necessary for paying debts.

Wherefore (a) if someone in reality exposes another's money and gains, he can indeed keep the gain, as an industrial fruit; but if he loses another's thing, the victor, who certainly knows this, cannot retain it, but ought to restore it to the owner, although afterward he can seek compensation from him who was defeated, provided that this man is not unable to pay.

(b) Minors, or wives, or others under a guardian cannot expose in gaming except those sums of money of which they have free administration. Hence he who has won from them a great sum of money which they could not alienate cannot retain it, but is held to restore it.

925. (B) That the game be entered freely; otherwise there will not be true consent, and therefore no true contract of gaming. Hence: -

(a) He who plays with one half-drunk, or half-witted, or another who is incapable of full consent, ought to restore the gain received from him.

(b) If someone has been induced to play by grave fear, fraud, or another unjust means, he is not held to pay the money which he lost, because he did not furnish free consent; but if he himself came out victor, he is not held to restitution, because he inflicted no injury on the other. But he who used fear or fraud is held to restore that which perhaps he gained, because he inflicted injury on the defeated.

926. (C) That the laws of the game be honestly observed, namely by avoiding frauds and illicit arts; otherwise damage is inflicted, and he who has used fraud is held not only to restore the gain unjustly obtained, but also to repair the damage which he inflicted by depriving another of the hope of gaining something.

Yet certain stratagems in gaming, as in war, are permitted or at least tolerated by custom or rules, e.g., to simulate fear or confidence, so that the other may become more daring or more timid, according to the various opportunities of the game.

927. (D) That some equality be preserved among those playing; for if someone very skilled were to abuse the simplicity of another in order to draw out from him abundant sums, he would commit injustice.

But if someone, already of mature judgment, knowingly and willingly plays with another more skilled, he cannot complain, because no injury is done to one who knows and wills; likewise, if each player was ignorant of the greater skill or lack of skill of the other, but wished to try fortune, properly speaking no injury is committed; because in this case the matter is truly aleatory, and each in good faith consents to the damage which he can suffer.

N.B. In most regions, civil law neither approves nor acknowledges the contract of gaming; in others, certain games are prohibited as dangerous or as preparing a way for frauds: in which case, the law, as ordered to the common good, is to be observed even in conscience; if the game is explicitly declared void, the victor cannot retain the gain; otherwise, if it is held only illicit, the conditions set forth above nevertheless having been observed, he can.

928. II. On wagering (gageure, pari, betting). 1. Wagering is an aleatory contract by which two or more, contending concerning the truth of some thing or of some uncertain event, agree concerning some price which will fall to the victor.

2. Concerning the liceity of this contract the same must be said as concerning gaming, above, n. 923; one must altogether guard against the habit of easily wagering being contracted, especially when the price is relatively notable, since nothing more turns men away from honest and arduous labor, and nothing more efficaciously leads them into drinkings and drunkenness. This is especially true of the habit of wagering in public horse races; wherefore, in certain regions, this is prohibited by civil law, because of many abuses arisen from it.

Yet if wagering is done rarely, on account of an honest motive, e.g., as relaxation of the mind, or as a stimulus for investigating the truth of a thing or fact, and indeed concerning a licit or at least indifferent thing, a moderate price having been fixed, it is not illicit of itself.

929. So that this contract may be immune from injustice: (a) the prize must be equal on each side, unless however one of the contracting parties spontaneously and freely offers a price of greater value; (b) the event must be uncertain to each party; whence if one is truly certain concerning the event, he cannot licitly wager, unless he openly says that the fact is known to himself and the other nevertheless perseveres in wagering: for then this man yields from his own right, and is judged, under the appearance of wagering, to make a donation.

930. III. Lottery is an aleatory contract by which, a certain price having been paid, the right is acquired of obtaining some prize, if the lot favors. - This indeed is not illicit of itself, since that which has already been set forth concerning gaming and wagering can be said of it; but it easily draws toward many abuses, especially by exciting a vain hope of quickly growing rich without labor; whence not a few are found who abstain from almost everything in order to buy a lottery ticket. Wherefore in many regions it is wisely prohibited by civil law, or at least is permitted only with special license, on account of a grave motive.

931. So that a lottery may not be unjust: (a) there ought to be a fair proportion between the price paid and the hope of obtaining the prize, with attention both to the value of the prize and to the number of those competing. Hence it is not permitted to the owner or institutor of the lottery to gain much more than he could make in honest business, unless however it is known to all that the lottery was instituted for promoting some good work: in which case the lottery is nothing other than an occasion of giving alms, with a modest hope of gaining something.

(b) Every fraud in drawing tickets or in attributing the prize to the victor must diligently be avoided: for if equality among those competing is taken away, or the proposed prizes are diminished, injustice is committed.

Gaming and wagering contracts (contractus aleatorii) are those in which the profit or loss agreed upon depends upon some future and uncertain event. Their peculiar feature is that one or both parties assume a risk which originates through the contract itself at a mutually agreed price. This note distinguishes gaming and wagering contracts from insurance contracts, in which the risk for one of the contracting parties exists before the agreement is made.

Generally speaking, gaming and wagering contracts are not forbidden by the moral law, provided hope of gain and risk of loss are equal, or approximately equal, on both sides, and no other law of justice or good conduct is violated. They are illicit if too large a sum is exposed to accident, or if the agreement made cannot be kept without in some way violating Christian self-love¹ or the charity due to others.

¹ See this Handbook, Vol. III, pp. 4 sqq.

The most important species of gaming and wagering contracts are the following:

1. Wagering or betting, i. e., a contract by which a prize is agreed upon for the one who correctly guesses an unascertained event, past or future. To make a bet is not sinful, provided it has a rational purpose, the matter is not sinful or an incentive to sin, both contracting parties are uncertain as to the disputed point, the object of the bet is understood by both in the same way, and the sum at stake is moderate.² If one of the parties is certain as to the disputed matter, and neglects to notify the other of the fact, he is bound in conscience to make restitution of the sum won, for the reason that the contract itself was invalid and unjust.³ But if he informed the other party that he was sure of the truth, and the other nevertheless insisted on betting, the winner would be permitted to pocket the gain, because in that case the loser would have only himself to blame.⁴

² Busembaum, Medulla Theol. Mor., l. III, tr. 5, c. 3, dub. 13: “A wager is a contract in which two persons contending about the truth or outcome of some matter promise one another something, so that it may belong to the one who has attained the truth, e. g., I wager ten imperials with you that this or that city has been besieged, captured, etc. For it to be done licitly, it is required: 1. That it concern a doubtful matter; 2. That there be equality in the thing wagered, with equal uncertainty; 3. That the outcome be doubtful for both; 4. That each understand in the same sense that concerning which they contend.” (Tournai, 1876; Vol. I, 262).

³ Antoine, Theol. Mor. Univ., tr. De Contract., P. II, c. 11, qu. 6: “If anyone, certain of the truth of a matter or of its outcome, has gained something by a wager, he is bound to restore it, even if he had warned the other of his certainty, who nevertheless wished to contend. For the latter does not wish to make a gift or to punish himself, but to wager, because he thinks that the matter is still uncertain and that he is being deceived by the other, and therefore afterward he diligently investigates the truth. But since in a wager the hope of gain is bought and sold as merchandise for the price of the risk of losing, if there is no risk of losing, nothing is bought or sold, and consequently the contract is invalid, just as the purchase of a false gem for a true one is invalid, even if the buyer had been warned that it was false but was unwilling to believe it.” (Douai, 1751; III, 617). Cfr. Sporer-Bierbaum, Theol. Moral., Vol. II, 2nd ed., n. 829.

⁴ Lehmkuhl, Theol. Mor., Vol. I, 11th ed., n. 1370: “If one of those wagering is certain of the matter, he cannot enter into a wager with the other; indeed, ordinarily it is not even sufficient that he say he is certain. But if he openly says that he is entirely certain and nevertheless the other persists in the wager, St. Alphonsus (Theol. Mor., l. IV, n. 879) admits that it is lawful to enter into a wager in the following cases: 1. If he who thought himself certain begins to doubt because of the other’s stubborn contradiction; 2. If, notwithstanding the former’s certainty, the other, although doubting his own assertion, nevertheless wishes to persist in the wager. To this may be added: 3. If it is in some way evident that there is a spontaneous intention to make a gift.”

St. Alphonsus refuses to acknowledge the permissibility of betting on the ground that the motives which alone can render it lawful, namely, recreation and entertainment, are in most cases absent, and holds that most betters are guilty of venial sin. But, as Schwane points out, there are other reasonable purposes that can be attained by betting, e. g., ending an argument or quieting disputatious persons and teaching them a lesson.⁵

⁵ St. Alphonsus, Theol. Mor., l. III, n. 868: “A wager is in itself an indifferent thing. Yet in the concrete (since in my opinion there is no indifferent action) I ordinarily judge that wagers of this kind are not excused from venial sin, because they lack a motive rendering them honorable, namely lawful recreation, such as is present in an honorable game. And St. Antoninus seems so to understand it (S. Th., P. II, tit. 1, c. 23, § 9), calling such gain base, as serving no useful purpose but vanity and prodigality.”—Cfr. P. Scavini, Theol. Mor., tr. 6, disp. 2, diss. 2, c. 2, a. 9.—J. Schwane, Die theol. Lehre über die Verträge, p. 188.

Nevertheless it remains true, in most cases, as Slater says, that though a wager that fulfils the conditions laid down by moralists is not in itself a sinful transaction, yet “a habit of gambling is easily contracted; and when such a habit has once been formed, it is very difficult to shake it off. There may be a certain amount of temporary success; the excitement and fascination which gambling has for many minds; the ease and rapidity with which large sums of money may sometimes be acquired by this means,—all lend their attraction, and combine to make what in itself, if indulged in occasionally, may be a legitimate form of recreation, a most dangerous temptation and the sure road to ruin.”⁶

⁶ Th. Slater, A Manual of Moral Theol., Vol. I, p. 558.

Moreover, betting is almost always associated with abuses. “Race-track gambling, book-making, bucket shops, are all merely cleverly disguised devices for separating the fool from his money. If it were only the fool who suffered, it would be serious enough, though perhaps salutary for the fool. But the evil radiates in all directions. This is so clearly realized that all betting on horse races is in many places forbidden by law. Elsewhere the State contents itself with declaring such contracts invalid and refusing to allow the courts to be used for the collection of any betting or gambling debts. . . . No nation avoids all gambling, but those nations are strongest and worthiest whose citizens come closest to the ideal of refraining altogether from such practices.”⁷

⁷ J. E. Ross, Christian Ethics, p. 355.

Wagering contracts generally are not enforceable in English courts of law; in the United States some courts have enforced certain wagers which were not considered to be opposed to morality or sound policy, whilst other courts have held that no wagers are recoverable.

2. A gaming contract is one in which the participants agree to give to the winner in a game, sport, or other pastime a sum of money or anything of value as a stake. It differs from a bet in that it is success which wins and not the truth.

a) As games themselves, be they of skill or of pure chance, are allowed within certain reasonable limits, for exercise or recreation, so, too, there is nothing per se immoral in gaming contracts by which money or some other valuable is staked on the result of a game, to be lost or won according to the success or failure of the participant. “These contracts are permitted by the moral law of nature,” says Busembaum, “provided proper conditions are observed, and no scandal is given, and provided, moreover, that there is no just prohibition, no wrong-doing, and no occasion of sin. The reason is that, as every man who is master of his property, can give it away absolutely, so also may he give it away under some condition, whether that condition depend on chance or industry.”⁸

⁸ Busembaum, Medulla Theol. Mor., l. III, tr. 5, c. 3, dub. 13: “A game is a contract in which players agree among themselves that what each has deposited shall fall to the victor. These contracts are lawful by the law of nature, provided the due conditions are present and no scandal or just prohibition intervenes from elsewhere, no injustice enters into it, and it is not an occasion of sin; because, just as anyone who is master of his property can give it to another absolutely, so also under some condition, whether that condition depends on chance or on skill.”

“There is nothing immoral,” says Slater, “in agreeing to hand over a sum of money if I am beaten in a game either of skill or of chance. This perfectly lawful action will, however, become unlawful if one of the parties is compelled to play against his will, or if cheating and fraud are practiced in the game, or if there is no chance of success on the part of one of the players (unless he knows this and freely consents to play in spite of it), or if the parties have not the money which they stake, or at any rate not the free disposal of it on account of its being required to pay their debts, or to support themselves and their families. Moreover, although gaming itself and under the conditions which have just been laid down, is not immoral, yet it is a dangerous pastime for many and easily leads to abuse, sin, and ruin. Especially is this the case when gambling is carried on in houses kept for the purpose, where all kinds of bad characters congregate. The keeping of such dens of iniquity is rightly punished by law.”⁹

⁹ Slater, A Manual of Moral Theol., Vol. I, p. 559.—Cfr. Gury, Comp. Theol. Mor., Vol. I, n. 885–887; n. 890–891.

In the United States gambling is considered unlawful and the contract null, yet the statutes of the different States vary considerably in matters of detail.¹⁰

¹⁰ M. Martin, S. J., in his American Notes to Slater’s Manual of Moral Theol., Vol. I, p. 559.

The owners of gambling houses, in which so many take scandal and others lose their all and are driven to desperation and often suicide, have a grievous responsibility indeed.

The civil authorities may, for weighty reasons, tolerate public gambling houses in order to prevent secret gambling and thus minimize the evil as much as possible.¹¹

¹¹ Lehmkuhl, Theol. Mor., Vol. I, 11th ed., n. 1373; Göpfert, Moraltheol., Vol. II, 6th ed., p. 203.

b) To indulge in gaming solely for pecuniary gain may easily become sinful, but, as De Lugo and Molina justly maintain, it is not sinful per se, for to strive after pecuniary gain for oneself or family is not in itself wrong, so long as it is not carried beyond certain reasonable limits. Playing at games of pure chance depends for its permissibility also on the players’ station in life and other circumstances. Women cannot decently indulge in such pastimes, and clerics are forbidden to do so if it involves scandal to others or loss of valuable time.¹²

¹² Slater, A Manual of Moral Theol., Vol. I, 558; cfr. Schwane, Die theol. Lehre über die Verträge, pp. 185 sq.; Conc. Trid., Sess. XXII, c. 1, De Ref.; Instructio Pastor. Eystettensis, 5th ed., pp. 544 sq.

c) To pay one’s gaming debts is a duty of justice if the contract was valid and licit. Hence he who wins in a legitimate game, even of pure chance, has a moral claim to the prize offered as stake. An unjust gaming contract, on the other hand, creates no obligation because it is invalid. A conscious violation of justice, e. g., lying or cheating, destroys one’s right to the prize and, if unjustly accepted, entails the duty of making restitution. If the game itself was not unjust, but merely illicit, because forbidden by law, the winner is not obliged to restore to the loser the prize he has received, unless a court of law condemns him to do so. Similarly the loser is not obliged to pay out a prize won in an illicit game, if the statutes enact, as they do in some States of the Union, that a person losing money or property at any game may recover the same by civic action.¹³ Every one is free to avail himself of a law that is enacted for the public welfare and designed to prevent illicit gambling.¹⁴

¹³ Slater, A Manual of Moral Theol., Vol. I, p. 559.

¹⁴ St. Alphonsus, Theol. Mor., l. III, n. 887 (ed. Gaudé, II, 297):—The loser, who has paid the prize, may not apply the compensatio occulta.—Ibid., n. 893; cfr. Gury, Comp. Theol. Mor., Vol. I, n. 889.

If the game itself and the underlying contract were licit, that is, not forbidden by positive law, and if the prize was duly proportioned to the means of the contracting parties, then the loser’s duty of paying the sum at issue is usually, according to the intention of the parties, a legal duty in foro conscientiae; if no such intention existed, there is at any rate a duty of fidelity, which must be complied with even where the civil law does not grant the right of suing for recovery. A duty based merely on fidelity, may, however, lose its binding force under certain conditions,—a fact which must be taken into consideration in dealing with such cases in foro conscientiae.¹⁵

¹⁵ Schwane, Die theologische Lehre über die Verträge, p. 187.

3. A lottery (loteria sive sortitio) is a scheme under which prizes are distributed by lot or chance. A valuable consideration is given for the chance of drawing a prize of greater value. The prizes are relatively few, and most of the players lose by the transaction. Per se a lottery is not unjust or contrary to the natural law, provided fraud is excluded from the casting or drawing of lots by which the event is settled, and provided further that there is a certain reasonable proportion between the sum paid for a chance and the hope of winning the prize.¹⁶ Some theo- logians hold that the profit made by the conductors of a lottery must not be larger than that yielded by any legitimate business undertaking, unless the lottery is operated for charity or for the public benefit.¹⁷ But this view is not shared by all.

¹⁶ Gury, Comp. Theol. Mor., Vol. I, n. 884: “A lottery is a contract by which several persons deposit something in common, so that they may have the right to draw by lot for the thing displayed in their midst. . . . A lottery is a licit contract, provided the required conditions are present. The reason is that a lottery can be regarded as the purchase of an uncertain thing or as a contract by which, with money, one purchases the right to draw by lot and acquire that which by lot has fallen to him. Furthermore, it is lawful to buy an uncertain thing, just as it is lawful to contract concerning the risk of some thing. . . .”

¹⁷ Ibid.: “The conditions required for a lottery to be a contract licit in itself are: 1. That there be no fraud in drawing the tickets or in paying the prize that has fallen by lot; 2. That the proprietor of the lottery not be excessive in profit nor morally gain more than if he invested his money or distributed his wares by another licit contract. Nevertheless, the profit may be greater if the lottery has been established for a good work or the public benefit.”—Cfr. Lehmkuhl, I, n. 1369; J. E. Ross, Christian Ethics, p. 357.

Playing the lottery is a fascinating occupation and tends to promote love of gambling with all its injurious consequences. Hence Father Cathrein says: “Though lotteries are not illicit per se, that is, so long as no fraud is perpetrated in selling the tickets and drawing the lots, they readily lend themselves to abuse, and only too often a simple and greedy public is led to buy chances beyond its means. Therefore lotteries should be limited as much as possible, especially if they serve no other purpose than private profit.”¹⁸

¹⁸ V. Cathrein, S. J., Moralphilosophie, Vol. II, 5th ed., p. 386.

But even if held for legitimate and charitable purposes, lotteries are of doubtful propriety. Many may participate therein without indulging in the gambling passion and without harboring hopes of easy profit, intending the money they pay for chances merely as an alms; but by promoting the lottery they render themselves co-responsible for the seduction of foolish and covetous persons and abet superstition.¹⁹

¹⁹ F. X. Linsenmann, Lehrbuch der Moraltheologie, p. 587.

Though governments have at times resorted to this scheme for raising money, lotteries are now pretty generally condemned as a form of gambling and are prohibited by law in Great Britain and the United States.²⁰

²⁰ Slater, A Manual of Moral Theol., Vol. I, pp. 558.—In the U. S. the lottery has been from the earliest settlement of the country a familiar means of raising funds which could not have been secured so easily, if at all. In the eighteenth century they were extraordinarily popular. Legislatures authorized lotteries for every species of public improvement, for the building of churches and colleges, for the repair of losses to individuals by fire and otherwise. Faneuil Hall (Boston), for instance, was rebuilt by lottery after the fire of 1761. The Continental Congress tried to raise money by lottery in 1777. The movement for the suppression of lotteries dates from 1833. The last lottery supported by government encouragement was the Louisiana State Lottery, which was crushed by an act of Congress in 1890, forbidding it the use of the mails. The company removed to Honduras, where it is still in existence, and from where it sells thousands of tickets every month in the United States. (Cfr. Cyclopedia Americana, Vol. IX, s. v. “Lottery”).

We Americans sometimes pride ourselves on the fact that we have abolished lotteries, regulated horse racing, and reduced various other forms of gambling to reasonable bounds; but as Fr. Ross justly observes,²¹ “this pride is hardly justified while at the same time the most important form of gambling—speculation on the exchanges—flourishes so luxuriantly and with so few regulations,” and, we may add, while our national game of baseball is made the means of wide-spread gambling all over the country.

²¹ Ross, Christian Ethics, p. 357.

READINGS.—St. Thomas, Summa Theol., 2a, 2ae, qu. 168, art. 2–4 (J. Rickaby, Aquinas Ethicus, II, pp. 376 sqq.).—De Lugo, De Iust. et Iure, disp. 31.—Sporer-Bierbaum, Theol. Mor., Vol. II, 2nd ed., pp. 868 sqq.—St. Alphonsus, Theol. Mor., l. III, n. 869 sqq. (ed. Gaudé, II, 286 sqq.).—J. E. Pruner, Lehre vom Recht, Vol. I, pp. 475 sqq.—J. Schwane, Die theol. Lehre über die Verträge, pp. 184 sqq.—Göpfert, Moraltheologie, Vol. II, 7th ed., pp. 202 sqq.—F. X. Linsenmann, Lehrbuch der Moraltheologie, pp. 583 sqq.—T. Slater, A Manual of Moral Theology, Vol. I, pp. 557–561.—IDEM, article on “Gambling” in the Catholic Encyclopedia, Vol. VI, pp. 375 sq.—J. E. Ross, C. S. P., Christian Ethics, pp. 352 sqq.

I. From natural law. 1. Notion of wagering and conditions of justice. Wagering (scommessa, pari) is a contract in which two or more, contending among themselves about the truth or event of some matter, mutually promise something to one another, so that it may belong to him who has attained the truth.

The justice of the contract requires: a) that the event be doubtful to each party, unless the other, warned, should obstinately have wished to wager, content with the possible error of the other affirming; b) that the equality of justice be preserved: unequal uncertainties must be compensated by unequal promises; and, if the matter does not depend merely on fortune, that there be an equal objective opportunity of conjecturing well, for example of considering the horses competing. If the inequality was known to the party wagering, one must see whether or not this principle can apply: to one knowing and consenting no injury is done.

2. Notion of game and conditions of justice. A game is a contract by which those playing agree among themselves that what each has deposited or exposed shall yield to the winner.

It is distinguished as aleatory, industrious, or mixed, according as fortune or art has the principal parts, or morally equal parts, in bringing about victory. The principal parts, I say, because almost always something must be attributed to each cause.

The justice of the contract requires that it be entered into freely, and that equality be preserved.

Can the more skilled contend with one much less skilled, without compensation for the inequality? The matter is disputed. But unless he has deceived the other, the latter seems to have accepted the game at his own risk.

Unlawful frauds and arts must be absent. Otherwise, the profit would have to be restored, besides that which the other, who had had the probability of winning, lost by the fraud, according to the proportion of his hope.

Rules and customs indicate which frauds are tolerated or are held as unlawful. Thus it is lawful for one playing cards to simulate fear, while he has the best cards; to inspect cards visible from the negligence alone of the other; during play, to recognize cards from a mark which they already bear, but not from one which he himself has put on them.

3. Moral honesty. Neither contract is illicit of itself. But from a positive prohibition, such as has been made for clerics, or from the vice of prodigality, or from the damage which you inflict upon others for whom you ought to provide from justice or piety, it can be opposed to various virtues.

And, considering the many crimes to which they give occasion, those are to be called guilty of grave sin of scandal and cooperation who open public buildings for great games, or sustain or foster similar institutions with money. Nor rarely is excessive profit established for those governing houses of this kind and for shareholders. Houses of this kind cannot be tolerated unless perhaps the reason of avoiding a greater evil should require it.

Concerning canonical prohibitions, cf. the tract on clerics and religious, III, 18.

4. Corollary. Those wager or play invalidly who, because they have nothing, cannot give to the other a useful right to the prize, or who are unwilling to obligate themselves by it, and therefore play with the intention of using a law which removes the obligation of paying. He who has determined merely to use a law which denies an external action, since he contracts an obligation, does not play invalidly, but already in affection sins against justice. - A wager or game by which a great amount of money is exposed at one time, so that in the one exposing it there is open prodigality, is probably null. (Cf. St. Francis de Sales, Introduction to the Devout Life, p. 3, c. 29.) Wherefore neither can the vanquished be compelled to give nor the victor to restore.

5. Scholion. A son of a family is not of itself forbidden moderately to spend something on an honest game from monies which he has received from his parents for support: such is presumed to be the will of the parents. And, at least in the same game, he can expose whatever he has won, since for this too a tacit faculty is judged to have been given. And provided the matter is moderate, the other player ought not to interrogate the son of the family about his right of playing.

II. From civil laws. 1. Civil laws agree in denying a forensic action for exacting what someone has won from wagering or game, unless perhaps, as not a few Codes do after French art. 1966, it has been of that kind which either teaches arms or exercises the body (a foot or horse race, ball, so-called boxing, etc.).

In this case, however, the French Code gives judges the faculty of rejecting an action by which excessive money is sought. But observe that the exception of itself profits only the actors, not wagers in which outsiders are parties, although their contest may have furnished occasion for these. Moreover, gaming debts are thought to be also monies lent during play. - The Mexican Code, however, 2771, grants an action for exacting a debt contracted in a lawful game, if it does not exceed 100 pesos.

2. Most laws at the same time deny that what has been paid can be repeated, unless frauds or deceit can be alleged, or unless, as the Swiss Code of Obligations 511 has, the matter treated is irrational. The Portuguese Code, however, art. 1512, permits that what has been paid on account of a merely aleatory game be repeated.

But observe that monies exposed on tables are held as paid in advance.

3. Now the question arises concerning the obligation of conscience. And that an obligation proceeding from an honest wager or game ought to be paid voluntarily seems to be established from the words of the Austrian Code, § 1271: wagers made in good faith and otherwise lawful oblige when the price has not only been promised, but also in truth paid or deposited. The same § 1271 establishes this concerning games. - Concerning Spanish law, on account of the words of arts. 1799-1801, by which it gives an action for games and wagers not prohibited, and at the same time art. 1798 denies an action for debts of an aleatory game, the obligation of conscience can be doubtful. Say the same concerning the Mexican Code, on account of the similar words of arts. 2272-2278; and perhaps concerning Argentina, on account of art. 2063. The Portuguese Code, art. 1511, does not permit the contract of game to be a mode of acquiring goods. The French Code, 1967, and the Italian, 1804, seem to recognize a natural obligation clearly enough; yet account must also be taken of the jurisprudence of tribunals, which in France consider an obligation contracted from game as of a shameful cause (cf. Colin and Capitant, II, 694); the more common opinion in Italy recognizes a natural obligation (cf. Pacifici-Mazzoni, V, 2, p. 377); nevertheless several hold as more probable, when the game is merely aleatory, that the cause is shameful and produces no natural obligation. Yet what has been voluntarily paid cannot be repeated, on account of the principle: shamefully given, shamefully repeated.

Finally, the laws of England and of the U.S.A. consider the contract of game as null. Can what has been paid be repeated? The laws of the States vary. (Cf. Slater-Martin, A Manual, etc., c. 13).

Conclusion for conscience. 1. What someone has received as profit from a game otherwise honest, he can keep, at least until the judge has commanded restitution. - 2. Those who have been defeated and do not owe an excessive amount of money, we shall exhort to pay the debt. - 3. Nevertheless, to impose a strict obligation will generally be difficult; nor will absolution have to be denied to him who wishes to use the civil law. Cf. Lehmkuhl, Das bürgerliche Gesetzbuch, at arts. 762-764; Theol. mor. I, 1372. The common persuasion of upright persons in the region also must be observed.

I. Notion. 1. A lottery by which, after the various parts of an inheritance have been constituted, it is committed to lot to decide which portion shall fall to each person, or by which also concerning a matter doubtful or litigious among a few it is established that it will belong to him whom the lot has indicated, is altogether to be separated from lotteries commonly so accepted. A lottery or sortition of this kind is entirely honest, and is juridically efficacious, as is expressly established by several Codes, for example the Austrian, § 1273, and the Brazilian, 1480.

2. The lottery of which we treat here is a contract by which, with several paying a certain price toward a certain thing or toward a certain sum of money placed in common, a right of the prize is acquired if the drawing should fall to someone.

II. Moral judgment. 1. The contract is just, provided that both the ratio of the prize and of the hope correspond to the money which the competitors pay; nor may the master of the lottery make excessive profit certain for himself. Therefore of itself, where he sustains no danger, as merchants who sell goods by the help of lottery, the profit ought not to exceed the fruit which honest business dealings are accustomed to bring. Often, however, some reason of beneficence is added. And in official lotteries the State reserves more for itself by way of tribute, not at all greatly to be recommended.

2. Lotteries, however, give place to many abuses. Wherefore laws ought to take care that they do not permit them except for just reasons; and they are accustomed to impede excesses by various cautions. Thus they require that titles which give hope of a great but uncertain prize, nevertheless meanwhile bear a modest annual interest. The prize itself is not to be counted among the fruits of the titles, but is the price of an aleatory sale promised in advance.

III. Positive laws are accustomed to distinguish lotteries permitted by public authority, whose obligations they sanction, and other lotteries which are either declared null and prohibited or are equated with games.

313. Notion. Aleatory contracts, so called from alea, i.e., an uncertain event, are those by which an uncertain gain is sought or an uncertain loss is averted for a certain price given. It is necessary, however, that this uncertainty of gain or loss not only truly be present on the part of each contracting party, but also that it be nearly equal; otherwise injustice is committed.

The following can be held as a general principle: All aleatory contracts are lawful, provided:

1. that the chance be morally equal between each contracting party (unless, however, one contracting party, knowing the inequality, nevertheless wishes to contract);

2. that no frauds be committed;

3. that there be no scandal and no prohibition of positive law.

We shall give the application of this principle in the following aleatory contracts, which seem to be the principal ones, namely: 1. insurance; 2. wagers; 3. games; 4. lotteries; 5. stock-exchange speculations.

315. Notion. A wager²⁰³ is "a contract by which two or more persons contending concerning the truth of some matter set a prize for him who shall have attained the truth."²⁰⁴

From this definition it follows that a wager is a bilateral onerous contract. Sometimes, however, only one person making the wager assumes an obligation upon himself;²⁰⁵ e.g., I wager that I shall complete this course in the space of one hour; otherwise I shall give ten francs for the poor. In this case the wager is rather a certain conventional penalty which someone, for the most part from vainglory, imposes upon himself.

Lawfulness of wagering. Wagers, considered according to natural law, are lawful, provided they are made: a) from an honorable end, e.g., for the sake of recreation, for stimulating one's powers, for investigating the truth better, etc.; b) concerning a due object, namely, a lawful matter doubtful on both sides. Since, however, grave and frequent abuses occur in wagers in practice, several modern civil codes partially or totally prohibit and invalidate them.

It is evident of itself that a wager concerning an illicit matter, e.g., concerning committing a theft, drinking an excessive quantity of wine, an exorbitant prize, goods of which the person wagering does not have free disposition, etc., is sinful.²⁰⁶ Nevertheless, profit received from such a wager can be retained. For the same thing holds which was said above, n. 253, concerning profit received from a shameful contract. Under pain of excommunication (which, however, no longer exists today), Gregory XIV, in the constitution Cogit nos of March 21, 1591, prohibited wagers made upon the election of a future Roman Pontiff or of Cardinals.²⁰⁷ The object of the wager ought to be doubtful on each side, i.e., each person wagering ought to have doubt and not certainty concerning the event in dispute. Hence, more probably, a wager is invalid if one person wagering is certain concerning the matter in controversy, even though he has openly warned his adversary of his certainty.²⁰⁸ The reason is that in this contract of wagering there ought to be hope of gain. But if one is certain concerning the event, the other has no hope of gain, and consequently cannot reasonably stake anything for it.²⁰⁹

Civil codes commonly establish: a) that no obligation arises from wagers; yet also b) that he who has received some profit from a wager is not bound to restore it.²¹⁰ These statutes, as just, seem to oblige in conscience. Hence, e.g., in Germany wagers (and the same holds for games) which are excessive and prodigal produce no obligation in conscience. Concerning the lawfulness of wagering, St. Alphonsus writes:²¹¹ "In the concrete (since, in my opinion, no indifferent action is given), I regularly judge that wagers of this kind are not excused from venial sin, because in them there is lacking the motive which renders lawful recreation honorable, as it is present in an honorable game. And St. Antoninus²¹² seems to understand it thus, calling such profit shameful, as serving no utility, but vanity and prodigality." This opinion indeed seems true if there is question of those who make wagers frequently and in grave matter; but if there is question of rare wagers of lesser price, they are indeed to be avoided by clerics and religious persons, since they furnish matter for contention, but they are not evil in themselves.

²⁰³ Wager (Wette, pari, betting).

²⁰⁴ Cf. Billuart, l.c. diss. 6, a. 5, § 5.

²⁰⁵ Unilateral wager (halbe Wette).

²⁰⁶ St. Alphonsus aptly observes (Theol. mor. l. 3, n. 870): "If the wager concerns a sin to be committed by some third person, it is lawful unless the person wagering desires the sin or gives assistance toward committing the sin.... But if the wager concerns a sin to be committed by one of the persons wagering, it will be lawful if you were to wager, e.g., that the other will commit the sin, because then the wager averts him from sin. It is otherwise if you were to wager that you would commit the sin, or that the other would not commit it; because then the wager would induce one to sin."

²⁰⁷ Cf. Moran, Theol. mor. I, 1187.

²⁰⁸ Cf., however, St. Alphonsus, l.c. n. 878ff.

²⁰⁹ Cf. Billuart, l.c.

²¹⁰ German Civil Code § 762ff.; French Civil Code art. 1964ff.; Austrian Civil Code § 1271; Swiss Code of Obligations art. 513ff.; Italian Civil Code art. 1802. For Spanish law see Moran, l.c. 1184, and Larraga-Saralegui, Comentarios n. 826.

²¹¹ Theol. mor. l. 3, n. 869.

²¹² S. theol. P. 2, tit. 1, c. 23, § 9.

316. Notion. A game, taken in the general sense, is some act primarily ordained to the recreation of the mind, or it is a remedy against weariness of the mind, giving it rest, i.e., pleasure.²¹³ Although someone can play alone, nevertheless a game is generally carried on among several persons, and then it can be defined: a contest of two or more undertaken for the recreation of the mind. But to this contest, lest it flag, there is ordinarily added a pact that some prize should fall to the victor. This pact indeed is called a contract of gaming and can be defined: an aleatory contract by which a prize is granted to him who shall have obtained victory in some contest entered upon for recreation. Therefore the end of every game ought to be honorable recreation of the mind. But if another end, e.g., gain or sensible pleasure, is principally intended, the game either is illicit²¹⁴ or is no longer a game.²¹⁵

²¹³ Cf. S. theol. 2, 2, q. 168, a. 2.

²¹⁴ E.g., games of chance (Glücksspiele).

²¹⁵ E.g., a lottery.

317. Morality of recreational gaming. St. Thomas^215a proves that a game clothed with due conditions and undertaken for honorable recreation of the mind is necessary, is an act of the virtue of eutrapelia, and consequently is meritorious. It is indeed necessary, because it is an excellent remedy against weariness of the mind. For just as weariness of the body is removed by good sleep, so weariness of the mind is cured by a suitable game. It is an act of virtue, because the office of virtue is to observe the right mean in our actions. But both defect and excess are easily present in gaming. Therefore a special virtue is required which avoids each. The virtue rightly ordering games is called eutrapelia by Aristotle; this word is translated into the Latin language as pleasantness, good conversation, urbanity, affability. Finally, a game is a meritorious act, because every virtuous act perfected in the state of sanctifying grace produces merit. But in order that a game be lawful, it is principally required: 1. that the pleasure joined to the game not be sought in a shameful object or in illicit operations; 2. that every excess be absent, for pleasure ought to be tasted soberly, as seasoning in foods; 3. that the game befit the person, time, and place. All these things are evident of themselves and do not need proof or illustrative examples.

Division. A game is divided into: 1. a game of skill, in which the outcome of the game depends especially upon the aptitude and skill of the player, e.g., a ball game,²¹⁶ the game of draughts,²¹⁷ etc.; 2. an aleatory game, which rests upon fortune alone and scarcely, if at all, upon skill, e.g., the game of dice,²¹⁸ etc.; 3. a mixed game, which is governed partly by skill and partly by fortune, e.g., several games of cards.

^215a L.c.

²¹⁶ Football.

²¹⁷ Skittles (Kegelspiel, jeu aux quilles, skittles).

²¹⁸ Dice (Würfelspiel, jeu aux dés, dice).

318. Principle. Gaming with a pact of gain is lawful, provided the following conditions are observed:

1. That the players have free disposition of the thing which they stake in the game. The reason is that in gaming ownership of some thing is transferred. Therefore he who does not have perfect ownership cannot licitly stake gain in a game, nor can the victor retain gain obtained from someone who does not have free disposition of the thing. Hence, e.g., games played for stakes by religious, minors, and wives are illicit and invalid, unless, however, there is question of goods of which they have free disposition.

2. That the game be played with full freedom and deliberation. For all contracts, and especially aleatory ones, ought to be free and deliberate. Hence he who compels someone to play, or who plays with a half-drunken person and thus acquires notable gain, sins and is bound to restitution.

3. That there be moral equality among the players with respect to the hope of gain and the danger of loss. For if on one side there is moral certainty of gain and on the other side the same certainty of loss, it is no longer an aleatory contract, but justice and equity are violated. Therefore, e.g., gain obtained from a game is unjust if someone very skilled plays a game of cards with another who is unskilled. But if someone knowingly and willingly plays with another more skilled person, or if he knows that the hope of gain is less, then no injury is done to him. For example, no injury is done to those who play in the city of Monte Carlo, even though the hope of gain for them is much less than for the Bank itself.

4. That frauds be avoided in the game; otherwise there is an obligation of restitution, and indeed of not only the gain fraudulently obtained, but also the damage inflicted by depriving the other of the hope of gain. Certain stratagems, however, which according to the custom of players are not considered shameful, are permitted, e.g., looking at the cards of another player solely because of his own negligence.

5. That gain not be principally intended in the game, or not be sought too avidly. For a game is instituted for honorable relaxation of the mind. Hence there is a disorder if someone, especially in an aleatory game, seeks gain more than this relaxation.²¹⁹ This disorder, however, is of itself only a venial fault, since it is not in so grave a matter; nevertheless, accidentally it can be a grave sin, e.g., because of scandal, because of prodigality, because of great damages in fortune, bodily health, and morals, etc. Therefore not without reason are places in which games of this kind are wont to be conducted for the hope of gain alone called "gaming hells,"²²⁰ and in most regions games of this kind²²¹ are altogether prohibited.²²² Generally, however, with regard to all games civil codes grant no action either to the victor for seeking the gain or to the vanquished for reclaiming what he has already paid, unless fraud or deceit intervened.²²³

Note. Games in which a large gain is staked are wont to be most dangerous; for they incite the human passions and induce manifold and grave disorders. Hence the confessor should prudently oppose them and should not impose upon anyone a strict obligation of paying debts contracted from gaming if civil law does not recognize such an obligation.

²¹⁹ St. Alphonsus, Theol. mor. l. 3, n. 885.

²²⁰ Gaming hells (Spielhöllen).

²²¹ Games of chance (Hazardspiele, jeux de hasard, game of hazard).

²²² Cf. German Penal Code §§ 284-286; Austrian Penal Code § 522; Swiss Constitution art. 35.

²²³ Cf. above, n. 315, note 4.

319. Scholion. On games prohibited by ecclesiastical law. Purely aleatory games are forbidden to clerics by ecclesiastical law if they are played for gain. "Let them not play at games of chance and dice, nor be present at games of this kind."²²⁴ "Let clerics (and the same holds concerning religious) not occupy themselves with aleatory games when money has been staked."²²⁵ Therefore let clerics not waste time in games, considering moreover how easily excess is committed with their own damage and the scandal of the faithful.

²²⁴ c. 15, X 3, 1; cf. Council of Trent, sess. 22, c. 1 de reform., and sess. 24, c. 12 de reform.

²²⁵ Code of Canon Law, canon 138.

320. A lottery is an aleatory contract by which, upon payment of a certain price, a right is acquired to obtain some prize if the lot is favorable.

A lottery is not illicit of itself, because buying the hope of gain is not prohibited. The principal conditions for a lottery to be lawful are: 1. that no fraud be employed in drawing the tickets or in paying the prize; 2. that ordinarily there be a fair proportion between the price paid and the hope of obtaining the prize. I say ordinarily, however, because several lotteries are instituted for promoting a good work, e.g., for building a church; in this case the lottery is nothing other than an occasion of giving alms with a slight hope of gaining something. Since the purchasers of these lots know this, no injury is done.

Since a lottery gives occasion to many abuses, e.g., by exciting a vain hope of becoming rich quickly and without labor and by occasioning excessive expenditures for the purchase of lots, civil laws in several regions consequently impede or at least limit the use of lotteries. These laws indeed are prudent; nevertheless, they are commonly considered as merely penal laws, not inducing an obligation, at least a direct one, in conscience, nor obliging to restitution in case of transgression.

DEFINITION. Betting (pari) is a contract by which two or more, contending concerning the truth or concerning the event of some thing, mutually pledge something to themselves, so that it may belong to him who shall have attained the truth.⁰⁴

1163. PRINCIPLES. I. Betting is, per se, licit. For by reason of itself it is an indifferent thing. It is illicit if it is made under sinful conditions, for example if someone bets that he will commit some sin, or that he will drink wine in the greatest quantity; otherwise, if someone bets that he will not sin.

In practice, bets rarely can be excused from venial sin, on account of defect of an honorable motive in the bettors, who generally are led rather by an end of vanity and prodigality. Yet an illicit bet does not impose the burden of restitution, unless it was also unjust (III, 869 ff.).

1164. II. That betting may be just, equality must be observed. It is required namely that the prize which is pledged be equal (unless the other party consents to inequality), and that the event be doubtful to both.

IT IS ASKED. Whether a bet has force if someone manifests that he knows the matter certainly, and notwithstanding this, the other perseveres in the bet?

Resp. The first opinion affirms that it has force, because the other ought to impute the detriment to his own pertinacity. The second, much more probable opinion denies, because the other does not bet except from the erroneous persuasion that the one asserting that he knows the matter does not have the certainty which he says (Lugo, disp. 31, n. 81). Yet the contract would have force if he who from the beginning seemed certain about some matter afterward, with the other contradicting and wishing to bet, began to doubt; because thus equality returns; or if the other already begins to give faith to the one asserting that he knows the matter certainly, because then he yields to his right (Lugo, l. c., n. 79). Cf. St. Alph., III, 878.

1165. DEFINITION. Lottery, or gainful sortition, is a contract by which several place a certain sum of money in common, and then draw by lot who is to receive the object of the lottery.

PRINCIPLE. Lottery is a licit contract, provided the due conditions are present. For it can be considered either as a simple game, or as the purchase of an uncertain thing; but each contract is altogether licit.

The required conditions are: 1. that there be no fraud in drawing out the tickets, nor in paying the prize which has fallen by lot; 2. that the owner of the lottery not exceed in gain, nor morally gain more than if by another licit contract he expended his money, or distributed his wares.

To some Authors this rule appears more severe than equitable; because, even in a game, he to whom chance favors justly gains more than he could have gained by negotiation. But all agree in this, that the gain can be greater if the lottery has been instituted for a good work or for public utility; for those participating in the lottery are judged to consent to this. See Gury, I, 943; Genicot, I, 663; Scavini, II, 583, where he treats of the dangers of royal Sortition, commonly regio Lotto.

1166. DEFINITION. Game, insofar as it regards justice, is a contract by which the players agree among themselves that what each has deposited should yield to the victor.⁰⁵

DIVISION. Game is threefold: 1. industrial, which is ruled by industry alone, as a ball game; 2. aleatory, which chiefly depends on chance, as a game of dice; 3. mixed, in which industry concurs with chance, as a game of cards, at least for the most part.

1167. PRINCIPLES. I. Game is, per se, honorable and licit. For it is a delight ordered to repairing the powers of the soul (cf. n. 834). Nor can it become illicit on account of the prize constituted; "because, just as anyone who is owner of his own thing can donate it to another absolutely, so also under some condition, whether it is fortuitous or depends on industry" (III, 871).

It is said: it is licit per se; for, per accidens, it can become illicit in various ways, and indeed: 1. by reason of excessive affection, if the player explicitly proposes to himself rather to sin than to leave the game; 2. by reason of the danger of sinning, if the game would be an occasion of quarrels, or of uttering blasphemies, dishonorable words, etc.; 3. by reason of the sum of money exposed,⁰¹ if it is not proportioned to the powers of the players, so that children, creditors, the poor, etc., suffer detriment; 4. by reason of circumstances of time, place, person, etc., if they are not fitting; 5. by reason of positive prohibition: thus, for example, games of dice are forbidden to clerics (cf. n. 2231).

1168. II. For the validity of game, diverse conditions are required. When these are lacking, justice is injured. And indeed:

1. The things exposed to the game must be proper to the players, and in their ownership, and in their free faculty of disposing.

Hence: a) If someone plays (even in a licit game) with a minor, a wife, or others who do not have free administration of goods, he cannot retain the gain, unless it is a question of moderate sums which are judged to be altogether permitted to their disposition. b) If someone plays with another's money, probably he must restore the gain. For the contract was null from the beginning, from the fact that money was exposed which neither of the players could acquire (III, 875; Lugo, disp. 31, n. 17). Except if the money of a deposit had been exposed, with at least the presumed consent of the depositor. Nevertheless, the contrary opinion is also probable, which attributes gain of this kind, as the fruit of his industry, to the victor, provided that, in case he is conquered, he can return from his own goods.

2. The players must consent freely to the game.

Whence if someone from among the players is not master of himself, so that he cannot furnish full consent, the contract is not valid and the gain must be restored. Nevertheless, if someone injuriously compels another to play, the contract per se becomes valid, but rescindable at the judgment of him who suffered fear (III, 880).

3. The players must not use unjust frauds.

Therefore the player who marks or changes cards, or appoints someone by whom he may be warned, is held to restore the gain, and also as much as the hope of gaining was worth to the other. But each one licitly uses the stratagems which the rules of the game and custom bear, for example he looks at the cards which the other does not hide well, or distinguishes cards from some accidental sign, or simulates fear so that the other may become bolder, etc.

4. Among fellow players there must be moral equality as regards the hope of gaining and as regards the peril of losing; otherwise justice would be injured (III, 882; H. Ap., X, 216). This equality in practice would be injured especially when someone deceitfully hid his skill (III, 881).

Note. a) Since it is licit, on the occasion of a profane business, to exchange spiritual things, it is licit to place prayers for the price of a game, as the use of pious persons proves. Otherwise, if one were to play with money, but the other with prayers; for that would be simony. b) Restitution of unjust gain is not to be urged if condonation on the part of the conquered can be supposed; which is easily supposed if it is a question of a matter of lesser moment.

IT IS ASKED. What must be observed from POSITIVE LAW as regards game?

Resp. The dispositions of Law are various: 1. Some games are positively approved, for example those which are ordered to exercise of the body; as regards these the law concedes action to the victor, so that he can seek the gain. Yet judges can refuse action if it is a question of a prize of excessive value.

2. Others are neither approved nor prohibited, and the law concedes no action, either to the victor for seeking the gain, or to the conquered for demanding back what he has already paid; unless fraud or deceit intervened on the part of the victor. Therefore one must stand by the natural obligation.

3. Others are prohibited, yet nevertheless they are not made void by that very fact: the law concedes no action to the victor; on the other hand it concedes to the conquered an action for demanding back the prize already paid. From the common and more probable opinion, the conquered, in such a game, is not held to pay; but if he has paid, he can with a safe conscience demand back what was paid. If the players from the beginning renounced the benefit of the law, the renunciation does not have force, which the law declares invalid on account of the common good; yet if the cession (which per se is concerning a licit thing) had been confirmed by oath, it would be wrong to withdraw from it, on account of reverence for religion (Lugo and Lessius, ap. St. Alphonsus, l. c.).

4. Others are prohibited and altogether made void, so that the gain cannot be retained by title of victory, but only by title of gratuitous donation, if it pleased the conquered to make it (III, 887-894; see Code, l. c.).

Note. Game, if one indulges in it immoderately, imports many and grave evils. Wherefore parish priests and confessors should attend to this, that they turn subjects and penitents away from the custom of playing, insofar as this can be done (cf. n. 410, 7). Cf. the things which Koch wisely warns, Moraltheol., § 149.

1037. • They are of various kinds: insurance, wager, drawing of lots or lottery, and game. They are called aleatory, because they are subject to the vicissitudes of chance.

Insurance is a contract by which one takes upon himself the peril of some thing (fire of a house, shipwreck of a ship, etc.), and the other obliges himself to a price for peril of this kind undertaken. The instrument by which the contract is written is called "the policy": the insurer, "the underwriter."

1038. Questions. - Query 1° Whether the contract of insurance is licit?

Resp. Affirmatively. For equality is preserved when the due conditions concur, as Theologians commonly confess, and daily practice confirms.

Query 2° What are the conditions required for insurance?

Resp. They are the following: 1° that the price be proportioned to the peril, or established by an incorporated society according to the Charter of incorporation; 2° that the peril be true, and equally known to each party; 3° that the insured observe all conditions of the contract; 4° that the insurer have whence he can pay.¹

1039. • You will resolve. 1° He who accepts money by loan, with which he may buy merchandise to load a ship (to buy a cargo), in the contract which is called "bottomry" (n. 1036), is guilty of usury if he himself also furnishes insurance of the ship; for the peril of the money is removed, on account of which the great usury was promised. - But he who in this case gives money by loan, if he furnishes one security concerning the value of the ship and merchandise to be paid in the case in which the ship perishes, can receive both a premium for the security, and an increase by reason of the peril. "Although respondentia and bottomry are of themselves a species of insurance, yet the lender has an insurable interest in his securities, and therefore may protect himself from the sea-risk by insuring them. However, a policy on bottomry or respondentia cannot be subscribed by the borrower of the money; for if he were to become an insurer, this would be no longer a loan upon bottomry, but a cloak for usury."²

1040. • 2° They sin most gravely who burn their own houses so that they may receive from the insurance society money beyond their value, or, when a fire happens by chance or by the malice of another, exact money greater than their damage. But in what manner restitution is to be made in this case is in practice very often difficult to define, since very often it is not clear whether it is to be transmitted to the treasury of the insurance society, with the officials unjustly retaining it for themselves. But what some think, that it is impossible for restitution to arrive certainly to the true owners, and to each of them for the part due to himself, if it is to be made to so-called mutual insurance societies, or at least to those whose associates (stockholders) are many, on the ground that, after the damage brought on the society and before restitution, very many associates perhaps will have left it, and it is unknown who they are and by what portion they were associates, is trifling, and is valid only for the case of the dissolution of the society; for to associates who leave the society, others succeed with a right to the credits and an obligation to the debts of the society. But in the case in which it is clear that the restitution will not be transmitted to the treasury of the society, or distributed to the individual associates according to their pro rata part, it must be made to pious causes. Resolve the same, on account of parity of reason, concerning any restitution to be made to some society.

3° A shipmaster sins who by his negligence gives cause for the shipwreck of an insured ship, or deliberately directs it toward the shore where it is to perish, or conceals those things which, if they became known, would deprive the owner of the ship or merchandise of the right of insurance.

1041. • 4° The contract of life insurance is licit, by which, on account of a premium given once, or on account of money paid yearly, some society or some private person obliges himself to pay a certain sum of money when it happens that someone dies, provided a) account is had of age, health, and other circumstances, and b) the price to be paid by each contracting party is fair. For on each side there is a risk, and the lot of loss, as also of profit, is uncertain. But they sin who conceal those things which would have impeded insurance, for example a hidden grave infirmity, a more advanced age, etc., or those things which would have impeded payment of the insured price, for example suicide committed by the insured; likewise those who kill the insured so that they may obtain the price.

Wager is a contract by which several persons, contending concerning the truth or concerning the event of some thing, mutually promise something to themselves, or deposit it with someone, so that it may belong to him who has spoken the truth.

1042. Questions. - Query 1° Whether the contract of wager is licit?

Resp. Affirmatively, the things to be posited having been posited; for it bears nothing dishonest before itself. - St. Alphonsus,¹ and others commonly.

Query 2° What are the conditions that a wager be licit?

Resp. 1° That the matter be understood in the same sense by each party; 2° that there be the intention of obliging oneself and of paying what is wagered; 3° that the event be uncertain to each. But if someone manifests that he is certain concerning the fact on which the wager rests, and the other nevertheless wishes to wager, the wager more probably is invalid. Except: a) if he who up to this point was certain concerning the event of the matter begins to doubt; b) if the other wishes to wager, although he doubts concerning the truth of the assertion which he maintains in the wager; or c) if it is openly clear concerning his spontaneous intention of donating. L. IV. 879.

Among us a wager generally furnishes no action in the external forum, and wagers concerning political elections are accustomed to furnish an occasion for many sins, e.g. calumnies, etc.

Lottery is a contract by which several persons deposit something in common, so that they may have the right of drawing by lot the thing exhibited in the middle. Certain persons have the whole, certain persons a part, certain persons finally nothing.

1043. Questions. - Query 1° Whether lottery is a licit contract?

Resp. Affirmatively, provided the required conditions are present. The reason is that lottery can be considered as the purchase of an uncertain thing, or as a contract by which with money there is bought the right of drawing by lot and of acquiring that which will fall by lot. Moreover it is licit to buy an uncertain thing, just as to make a pact for the peril of some thing.

Query 2° What are the conditions required so that lottery be a contract licit in itself?

Resp. They are 1° that there be no fraud in drawing the tickets, nor in paying the prize which has fallen; 2° that the owner of the lottery not exceed in profit, nor morally gain more than if by another licit contract he expended his money, or distributed his merchandise. Yet the profit can be greater if the lottery has been instituted for a good work or public utility. - Thus commonly. Public lottery is never permitted in some States; in the rest it cannot be made without the license of civil power.

1044. • Game is a contract by which players pact among themselves that the price which they have exposed may fall to the victor. - Game is threefold: 1° industrial, which is chiefly ruled by the industry of the players, as a game of ball and of disks; 2° aleatory, which principally depends on chance; 3° mixed, which depends partly on industry, partly also on chance, as, for example, a game of cards, at least for the most part.

1045. Questions. - Query 1° Whether every species of game recounted is licit?

Resp. None of the three aforesaid games is illicit of itself, if the due conditions are observed. The reason is, because game of itself 1° is not repugnant to morals, since it is honest recreation; 2° nor to justice, since anyone can transfer the dominion of his own goods to whom and in what way he wishes.

Formerly aleatory games were prohibited to all by Canon Law, especially to Clerics; but these laws as to laymen have gone into desuetude. As to Clerics see n. 1132. 5°. Whether and what games are prohibited in the individual States, each one will easily discern from the laws of his State, which besides are merely penal.

1046. • Query 2° What are the conditions required that game be licit?

Resp. It is required 1° that the player have free administration of the things which he exposes. Hence to a son of a family who plays concerning the goods of his parents without their license, at least presumed, the sum won in game, even licit of itself, must be restored, just as from the truer opinion a son of a family also must restore what he has gained.¹ 2° That fraud and deceit be absent from the game. But those clever devices which the rule of the game and received custom allow do not constitute fraud, for example to simulate fear so that the adversary increase the wager; to inspect another's cards from this man's negligence alone. But fraud which neither the rules of the game nor received custom allow would be, for example, so to place yourself that you can see the cards; to appoint another by whom you are warned; to steal cards or mark them with signs on the back, etc. But he who uses some fraud of this kind which is not accustomed to be applied and to which the fellow player does not consent expressly or tacitly, is held not only to restore what he himself gained, but also what the other, that fraud not having been applied, would justly have gained. In doubt concerning this, let him restore as much as the greater hope of victory was worth, which the fellow player, the fraud ceasing, would have had. 3° That on each side the peril of losing be morally equal. 4° That the game be honest in itself, and not prohibited by law. 5° That coercion be absent. But one coercing, not much more skilled, licitly retains what was gained and not sought back by the vanquished. 6° That one not play in such a way with damage to the family or creditors. L. IV. 877. 880. 882.

1047. • Query 3° Whether the victor who is much more skilled in the game is held to restore, so that he knows beforehand with certainty that he will be victor?

Resp. Affirmatively, much more probably; because the equality required between the players is lacking, and therefore justice is injured. Hence the one notably more skilled must withdraw from the game, or remit some advantage to the adversary. - Thus more commonly. L. IV. 881.

Yet in practice restitution would not have to be urged if it was a question of a thing of lesser moment; or even when the adversary, sufficiently forewarned, nevertheless obstinately wished to play; because then no deception would have intervened.

1048. • Query 4° Whether the victor in a prohibited game is held to restoring, or the vanquished to paying in the same game?

Resp. to the 1st Negatively, in those States where the contract is not declared void by law, but only rescindable. L. IV. 887.

Resp. to the 2nd Negatively, where the contract is void: otherwise it is controverted. The 1st OPINION denies; because the law, by prohibiting such a game, seems by this very fact to have taken away the natural obligation of paying into punishment of the victor. - Thus Lugo.¹

The 2nd OPINION affirms, because the contract was valid by natural law, and therefore the vanquished must stand by it until he judicially seeks restitution. St. Alphonsus calls the first more probable and more common; yet the second very probable.²

1049. • Query 5° Whether players renouncing the benefit of the law are held to pay if they are vanquished?

Resp. Distinguish. That renunciation either is sworn or not sworn. If not sworn, negatively, because the renunciation, as being contrary to the common good, is null. Except if the renunciation is made after payment, because then it is a new gratuitous donation independent of the game. - If it is sworn, they are held to pay in States where the contract of game is declared only rescindable, but they will be able to seek dispensation or to seek back what was paid: but they are not held in States where it is declared void. L. IV. 891. 892. Cf. things said n. 865. 866.

Query 6° Whether the vanquished, if he has already paid, can compensate himself for what was paid?

Resp. By distinguishing, as was just said, between the States; for compensation will be licit in those where the contract is void; but in the rest it will be illicit, unless the victor refuses to return what was paid to the vanquished seeking rescission. See St. Alphonsus L. IV. 893. coll. 717.

Query 7° What if the vanquished falsely threatens that he is going to seek back in judgment what was paid, and the victor consents to settle?

Resp. More probably the settlement is valid; for whatever the victor cedes, he donates so that the vanquished may cede the right by which he truly is strong, of seeking back what was paid. L. IV. 894.

1050. • Query 8° Whether you can retain profit from a game in which either you yourself or the fellow player exposed another's money?

Resp. Negatively to both. For you yourself exposed nothing to the game by exposing what was another's; therefore the contract was unjust and you are held to restore the profit to the vanquished; but the fellow player, exposing another's thing to the game, cannot give you a right which he himself lacked. - Except if either you yourself or the fellow player exposed a deposit, with the consent at least presumed of the depositor (n. 924), or has something else which he may hand over. L. IV. 875.

Query 9° Whether the game is valid if a great sum of money is exposed at one time?

Resp. More probably affirmatively of itself, i.e. prescinding from the laws of the States where the contract is void, and provided the required conditions are observed, that is especially, if the players are able freely and fully to dispose of their own goods, without detriment to family, creditors, etc., ... because the players equally undergo peril knowingly and willingly; and therefore there is no injustice. But the aforesaid conditions easily fail; and otherwise, even if such a game were not against justice, at least it is opposed to honesty: whence a prudent confessor, by way of satisfaction, if it seems opportune, could enjoin on the penitent victor that he expend some part of the profit for pious uses. - Antoine.¹

Note. - Although game for the most part is licit in itself, and serves honest recreation, due moderation in its use is to be commended as much as possible, lest it easily decline into detestable abuses. For how great evils come from it, daily and too lamentable experience proves! For how many, alas, most miserable young men are seen, and also men of whatever condition, who, given over to game, make the loss of an entire fortune in a few days or hours, immerse their family in hardships, and themselves are rolled in every kind of disgrace! Therefore let Parish Priests and confessors strive according to their powers to turn subjects and penitents away from the madness of playing of this kind. - Thus Gousset rightly concludes.¹

1051. • To game or wager in some sense can be equated settlement (compromise), by which a doubtful matter and uncertain lawsuit is composed. If the right of another is certain, the other cannot without injustice induce him to settle; and therefore he must restore. But nothing forbids someone knowingly and willingly to cede to his own right, especially if the right has arisen from a fortuitous case, for example game, wager.¹

• Emphyteusis (a sort of fee-farm or copyhold) is a contract by which useful dominion of an immovable thing is transferred, direct dominion being retained, under the burden of an annual pension. Among us this sometimes exists under this form: fields are sometimes handed over on this condition, that within a certain space of time so many acres be made suitable for cultivation, trees having been cut down, and that the fields be surrounded with fences, and a barn and houses be erected. If for a determined time the pension is not paid, the owner by the authority of law can expose the goods of the tenant for sale, or, if there is not an abundance of them, eject him after some days, the form of law having been observed. - Often from the fruits of the fields some portion is to be paid to the owner: in this matter the faith and justice of the tenant is to be considered, lest, led by empty reasons, he conceal the truth of things. Kenr. Tr. XI. n. 145.

Feud is a contract by which, under the burden of fidelity and personal service, the useful dominion of an immovable thing is transferred, direct dominion being retained. That manner of contracting flourished in the middle age, but already began before it. Fields were handed over to soldiers by that pact that they would accompany the owner with certain services, and follow him to war. He who had obtained a feud was called a Vassal, and was not able to transfer the feud to another without the consent of the lord. Those things which were possessed immune from every burden, and by absolute right, were called allodia (freehold). All in the Federal States are judged to be of this kind. Ib. n. 146.

1450. - Concerning the dangers of play see n. 1050 Note.

Query. Can one who, because of play, is placed in a proximate occasion of disorders, concerning which n. 1050 Note, render this occasion remote by employing cautions and moderation?

Resp. This depends on the circumstances. Sometimes indeed he will be able to do this; but if he is borne to playing by an excessively great passion, or if the quality of the companions or place almost necessarily draws him to play and to excesses, then no remedy remains except in the first hypothesis altogether to desert play, and in the second to desert those companions and that place.

593. Essentially aleatory contracts, so called from alea, that is, an uncertain event, on which they essentially depend, for in other contracts also there can be an alea, are those by which uncertain gain is sought or uncertain damage is averted by a certain price given (a. 1964). This uncertainty of gain or damage must not only be on the part of both contracting parties, but also must be almost equal; otherwise injustice is committed. Hence, that they may be lawful, it is required: 1. that the alea be morally equal; 2. that no fraud be present; 3. nor any scandal or prohibition of positive law.

An aleatory contract can be diverse:

A. On the part of the uncertainty of the thing to be furnished; according as a) it is uncertain from one part only, as in insurance, in which one pays a certain thing while the other is obliged to repair an uncertain damage; or b) it is uncertain from each part, as in play and wagering.

From this it is understood that an aleatory contract differs much from a conditioned contract entered into under a suspensive condition: for the latter does not exist unless the condition has been fulfilled; the former is firm and absolute, but it remains uncertain only whether or which of the contracting parties ought to furnish something.

B. On the part of the object; which can be 1. uncertain damage to be guarded against, as in insurance; or 2. uncertain gain to be obtained, as in lottery and gratuitous play; or 3. gain or damage, whether a) determined by an unknown event, as in wagering, or by a future event, as in onerous play; or b) indeterminate, as in Stock Exchange speculations.

We shall speak:

1. Of insurance.

2. Of play, wagering, and lottery.

3. Of Stock Exchange speculations.

600. Play (jeu; spel) in the moral sense and according to itself is artificial speech or action for the recreation of the soul; thus it is a remedy against weariness of the soul, giving it rest or delight, and therefore it pertains to the virtue of temperance, as will be explained afterward, n. 1060. But in the juridical sense it is a real contract, entered into on the occasion of this, by which those playing agree concerning a certain gain or price to be handed over to the victor as a prize. Sometimes it is proposed to the victor as a prize properly so called, by way of gratuitous donation, and then equality among those playing is not required; at other times by a bilateral and onerous contract, as it were for buying the hope of gain by the danger of loss, and then equality among them is required.

One play is aleatory, or of fortune, which is ruled by fortune alone, so that the outcome depends almost wholly on chance, as in dice; another is of skill, which is ruled by talent alone or by expertise, so that the event depends chiefly on the skill and dexterity of those playing, for example, ball play, chess, skittles, marbles; another is mixed, whose outcome depends partly and almost equally on chance and partly on expertise, as many games of playing cards are.

Play, with evil circumstances excluded, is according to itself honorable, as ordered to the necessary relaxation of the soul. But if gain is principally intended or too eagerly sought, it becomes disordered; likewise also when it is exercised immoderately, in which case it easily excites vain hope and a disordered appetite of making money without proportionate labor. In these circumstances it is frequently an occasion of other sins: prodigality, idleness, drunkenness, quarrels, and others by which a man can offend against charity and piety toward himself and his own.

But that the contract of play may be just, immune from every injustice, which in the present matter is especially to be considered, it is required:

A. That those playing can and wish freely to dispose of the goods which they expose: for by play there is a transfer of dominion; therefore those who do not have perfect dominion cannot play. Therefore they cannot expose to the danger of the lot things belonging to another, or those whose administration they do not have, or money necessary for paying debts. Hence:

1. He who exposes another's money by playing: a) if he gains, per se can keep the gain, as the fruit of mere skill; b) by accident, however, if in his own goods he has nothing at all from which he can indemnify the other party in the case of adverse fortune, he can demand or accept nothing from him, for he injured equality, when he wished to oblige the other to give something, while he himself obligated himself to nothing; the same must likewise be said if, having goods, he was unwilling to oblige himself; c) but if he loses another's thing, neither can the other, by winning, retain it when he certainly knows this, but he must restore it to the owner; but then he can seek compensation from him who was defeated, provided the latter is not unequal to paying.

2. Minors, wives, and others constituted under a tutor or curator, cannot expose in play except money whose free administration they have. Hence he who has gained from them a great sum of money which they could not alienate cannot retain it, but is held to restore it. Nevertheless sons of a family can expose a moderate part of those things which they receive from their parents, because this pertains to honorable recreations; moreover, those things which they obtained by playing.

3. Religious cannot play without at least the presumed consent of the superior; otherwise they sin not only against justice but also against religion by violating the vow of poverty; indeed they play invalidly, at least if they have emitted a solemn vow, or if they dispose of the goods of the monastery against the will of the superior.

B. That play be entered into freely; otherwise true consent is not present, and therefore neither is a true contract of play. Hence:

1. He who plays with one half-drunk, half-witted, or another who is incapable of full consent, must restore the gain received from him.

2. He who was brought to play by another through grave fear, fraud, or another unjust means: a) is not held to pay the money which he lost, because he did not furnish consent altogether free and can rescind the contract; b) but if he came out the victor, he is not held to restitution, because he inflicted no injury on the other; c) but he who used fear or fraud is held to restore what he gained, at least after the other has sought rescission: for he inflicted injury on the defeated party.

C. That the laws of play be observed honorably and that all unjust means be avoided, such as frauds and illicit arts; otherwise damage is inflicted by an unjust means, and he who used it is held not only to restore the gain unjustly obtained, but moreover to repair the detriment which he inflicted on the other by depriving him of the hope of gaining.

Yet there are tricks and stratagems permitted in play as in war, or at least tolerated by rules or custom, such as feigning fear or confidence so that the other may become bolder or more timid, seeing cards visible from the negligence of the other alone, not warning him about an error, and recognizing cards from a mark which they already bear, but not from one which he himself placed while looking.

D. That moral equality be preserved among those playing in the hope of gaining and the danger of losing; otherwise there will be injustice, especially if one well skilled deceitfully hides his skill in order to draw the other to playing, or if he abuses the simplicity of another in order to draw large sums of money from him.

Equality per se is required: 1. on the part of the conditions, unless, however, one or the other freely yields in some things; 2. on the part of the price, unless again he spontaneously exposes or remits more; 3. on the part of skill, unless the more skilled person in some way compensates the inequality. Nevertheless:

a) He who, being of mature judgment, knowingly and freely willing, plays with another more skilled person cannot complain, because injury is not done to one who knows and consents.

b) If both players, with the greater skill or lack of skill of themselves unknown, wished to try fortune, the contract will have been entered into by way of wagering and is just, because on each side there is equal danger; nor is injury committed, because each in good faith consents to the damage which he can suffer from it.

It should be noted that in most regions the civil law neither approves nor acknowledges the contract of play, except perhaps for certain games which exercise the body and for moderate gain (a. 1965-67).

In other places aleatory games indeed are prohibited as dangerous or as preparing the way for frauds; or even pacts concerning them are declared void. These dispositions oblige in conscience at least after the sentence of a judge, even if the laws were merely penal. But if the law especially prohibits the organized industry of aleatory play, even without the intervention of a judge it obliges in conscience, because it represses something vicious of itself which is harmful to many, indeed to the public good.¹

¹ Cf. Belgian Penal Code, a. 305, 557, 558, and the law of 24 Oct. 1902.

601. Wagering (pari, gageure; wedding) is an aleatory consensual contract by which two or more, contending concerning the truth of an unknown matter or of an uncertain event, pledge gain to him who will have attained the truth, or promise a prize which will fall to the victor.

That contract can be lawful and just under the same conditions as play, because, just as in play, the parties are exposed to an equal hope of gain and danger of loss. Hence:

A. The immoderate custom of wagering is to be avoided, especially for a notable price, because it turns one away from labor and generates an appetite of gaining unduly without a proportionate effort, and is an occasion of manifold prodigality, disorder, and fraudulence, especially in public races. Hence St. Antoninus, Sum. Th., p. 2, tit. 1, c. 23, § 9, concerning such a custom of gaining from wagering, says: shameful gain, as serving no utility, but vanity and prodigality.

B. But that wagering may be just and immune from every injustice, setting aside that it cannot be about an illicit thing, for example, concerning him who may drink more, or may dare to fight in a duel, in which case the contract is illicit and invalid in the sense in which it was said concerning a contract under a base condition, the following conditions are required:

1. That the thing or fact be understood in the same sense by the contenders; otherwise there would not be consent to the same thing.

2. That the thing about which there is contention be uncertain with respect to the contenders, or that the event be doubtful to each; otherwise there would not be equality of hope and danger.

Hence: a) if one is truly certain concerning the event, per se he cannot lawfully wager; indeed, neither validly, because the gain is not uncertain and the danger is null; b) by accident he can, if he openly says that he is altogether certain, but the other nevertheless persists in wagering: for then the latter is judged to yield his right or to bestow something gratuitously.

3. That the prize on each side be equal, namely, proportionately to the probability of the event and to the objective means by which they can conjecture it; unless, however, one of the contracting parties spontaneously and freely offers a greater price.

In Belgium, the civil law does not vindicate the obligations and effects either of play or of wagering; it denies civil action to them, except only for moderate gains which arise from games pertaining to skill and exercise of the body. On the other hand, no one also can by civil action seek back what he spontaneously paid after play, unless fraud or malice intervened (a. 1965-67). In other words, the civil law leaves those obligations as they are from natural law; whence the obligation of paying is present unless fraud intervened, or unless someone cannot pay except by sinning.

But what if someone were to play or wager with the purpose of not fulfilling the obligations arising from it, but of using the benefit of the law if necessary? Resp.: he would injure justice in affection, but the contract would be valid, because for the value of the contract the intention of fulfilling the obligation is not required, but the intention of assuming the obligations of the contract suffices. Yet he who would be unwilling to oblige himself in any way would enter into no contract, and would also be held to restore the gain perhaps obtained.

602. Drawing lots or lottery (uitloting) is an aleatory contract by which, after a certain price has been paid, a right is acquired of obtaining some prize, if the lot favors, whether concerning one object or several; or a real contract by which, with several persons paying a price for a certain thing placed in the middle, the right to the prize is acquired if the drawing of lots falls to someone.

It is not per se illicit, in the same way as we have said concerning play and wagering, although it can offer occasion to manifold abuse; whence in several regions it is prohibited by law, or at least is permitted only with special license on account of a grave motive.²

² Cf. Belgian law of 19 Dec. 1851 and Penal Code, a. 301-304.

Those contracts are called aleatory which are subject to the vicissitudes of fortune, either wholly or only in part. Several are numbered, but the principal are insurance, wagering, lottery, and gaming. A few things will be said concerning each one.

Insurance is a contract by which one of the contracting parties takes upon himself the danger of some thing, and the other obliges himself to a certain determinate price for this kind of danger taken up. Thus, for example, life is insured against death, a house against fire, a ship against shipwreck, etc.

On life insurance. There is certainly need of great prudence in entering upon and interpreting this contract. For some things concern the validity, and some only the liceity, of the contract. Here we regard the obligations and rights of the insured. 1st. The person examined ought to be the person insured. 2nd. There are certain diseases, certain degrees of diseases, whose existence precludes every contract. 3rd. There is a determined age below and above which the company does not make a pact. If all or one of these conditions are not observed, the contract is null. But there are 4th. other things which leave the contract valid, yet, if known, would have caused the companies to bring forward another pact; for example, if the true age is not given, but some age is given within the years generally required. There are 5th. other things of lesser moment which leave the pact as it lies. Finally 6th. companies often set down other annulling clauses which nevertheless we can regard as obliging in the forum of conscience to restitution only when the sentence of a judge has then been given. In entering upon these contracts the only method to be used is the sincere method. Therefore if some damage has been unjustly inflicted on the company, this certainly must be repaired. If someone substitutes another to be examined for himself, he does not have a right to the money concerning which agreement was made. If someone has a very advanced disease, with which existing the company would not have entered, but did enter because deceived, the contract is null. If someone, say, makes a pact above the age, the money is not his or his heirs'. This money must be returned, with the sum deducted which is equivalent to the annual premiums paid, unless the sentence of a judge has declared otherwise. If someone has given a false but insurable age, let the heirs compose the matter so that they retain for themselves that quantity of the handed-over money which would have been given if the true age had been designated. Yet we judge that in these adjuncts of lesser moment one must act more mildly if the ministers of the company themselves were in the cause and the insured acted as if deceived. Besides, several other circumstances here and there are taken up by the company to be investigated, and this must be said to pertain to it: thus the disease of grandparents, and other things; we do not judge that these things, concealed in good faith or exercising no influence on the death of the insured, are to be held as destructive of the pact. Let this be said in general. There are certain companies which set down a healing clause, by force of which, if after a time determined from the pact entered the company has not discovered and decided the matter, the contract is unassailable, for example, The New York Life Insurance Co.: according to this company, incontestability means: if the insured person is the examined person (i.e., if no substitution was made), if that person has truly died and the contract or policy, as it is commonly called, is in force at the time of death according to its terms, this contract will not be contested. "This policy shall be incontestable after one year from its date of issue except for non-payment of premium." (Studies in Practical Life Insurance, p. 154.) We judge also, as we have already indicated, that the company ought to answer for errors of the contract which are owed to its agents and not to the private persons themselves, who are easily deceived by them in good faith; otherwise the whole difficulty will fall upon innocent heirs. As to restitution itself, when its obligation is truly present, it is of itself to be made to the injured company. Yet, as in other matters, so in this cause great difficulties can arise. But if it is established that the company insured itself against these events, perhaps it can more easily be permitted that restitution be made either to pious causes or to the poor. - Cf. Lehmkuhl, nn. 1036 et seq. - Bulot, n. 830. - Huppert, Der Lebensversicherungsvertrag. - Genicot, n. 658, VIII. - Hudnut, Studies in Practical Life Insurance.

I say. The contract of insurance is licit; for when due conditions concur, equality of justice certainly is preserved in it, as theologians commonly admit and daily practice confirms. - But the required conditions are the following: 1st. that the price be proportioned to the danger; 2nd. that the danger be true and equally known to both parties; 3rd. that the insurer have that from which he can pay; 4th. that the insured observe the particular conditions of the contract. - Cf. St. Alphonsus, n. 911. - Kenrick, nn. 137 and 139.

Wagering is a contract by which several persons contending about the truth or event of some thing pledge something to one another, or deposit it with a third party, so that it may belong to him who has spoken the truth.

I say. The contract of wagering is licit, with those things posited which must be posited; for it presents nothing dishonorable in itself and is approved by the common practice of all peoples. - But the conditions are: 1st. that the thing be understood in the same sense by each party; 2nd. that there be the intention of obliging oneself and paying what is pledged; 3rd. that the event be uncertain to both. Cf. Kenrick, n. 154.

Lottery is a contract by which several persons deposit something in common so that they may have the right of drawing by lot the thing exhibited in the midst. Some have the whole, some a part, and finally some nothing.

I say. The contract of lottery is licit provided the required conditions are present. The reason is that lottery can be regarded as the purchase of an uncertain thing, or as a contract by which with money is bought the right of drawing by lot and acquiring that which has fallen by lot; but it is licit to buy an uncertain thing, just as to make a pact for the danger of some thing. Therefore . . . - But the required conditions are the following: 1st. that there be no fraud in drawing out the tickets, nor in paying the prize which has fallen; 2nd. that the owner of the lottery not exceed in profit, nor morally gain more than if by another licit contract he spent his money or distributed his goods; although nevertheless, if the lottery has been instituted for a good work or public utility, it is commonly admitted that the profit can be greater.

Gaming is a contract by which those playing make a pact among themselves that the stake which they have put up should fall to the victor. Game is distinguished threefold: 1st. industrial, which is governed especially by the skill of those playing; 2nd. aleatory, which depends chiefly on chance; 3rd. mixed, which depends partly on skill and partly also on chance, as, at least for the most part, is the game of cards.

I say. None of the three aforesaid games is of itself illicit, if the due conditions are observed. The reason is that gaming is repugnant neither to good morals, since it is of itself an act of honorable recreation, nor to commutative justice, since anyone can transfer the dominion of his goods to whom and in what way he wishes. I said of itself, because often from adjuncts gaming becomes a thing full of dangers, and unless due moderation, which very often is most difficult, is employed in its use, in a short time it turns aside into detestable abuse. But the required conditions are the following: 1st. that the player have free administration of the things which he exposes; 2nd. that fraud and deceit be absent from the game; 3rd. that on both sides the danger of losing be morally equal; 4th. that the game be honorable in itself and not prohibited by law; 5th. that an enormous sum not be exposed, so that the family and creditors could suffer damage from it.

Question. Whether the victor in a prohibited game is bound to restore or the one conquered is bound to pay in the same game?

Resp. The victor certainly is not bound to restore, because the contract is not always and everywhere declared void by law, but only prohibited; and if somewhere it were declared void, yet because by natural law it is valid, as is supposed, positive law cannot, at least according to the probable opinion, invalidate it in the internal forum. For this same reason the one conquered in a prohibited game is not to be obligated to pay in the forum of conscience; for the opinion which holds that the contract becomes void by force of positive law is probable. - Cf. St. Alphonsus, nn. 887 et seq. - Lugo, disp. 22, n. 300; and disp. 31, n. 60. - Lacroix, lib. 3, part. 2, n. 1086.

The Exchange is a place constituted by public authority for the exchange of values, to which negotiators and their Agents come together for dispatching business. Among us it is called the Stock Exchange, or exchange of values. The negotiations which are made there turn about securities, stocks, obligations, commodities. The rules of the diverse Exchanges form a certain system according to which negotiation concerning stocks or commodities is made either for investing capital or for the sake of speculation. Negotiations are exercised either with cash or with credited money. In the New York Exchange fictitious sales do not exist. In the hall itself stocks or obligations are not actually exchanged, but there are only made promises of delivering or receiving a determinate number of securities at a determinate price. The actual delivery itself, if the whole transaction is regular, must be made before a quarter past two in the afternoon of the day following the sale. But negotiation can be made so that delivery is placed on the same day or after three days, or there are even options of sellers and buyers for a space which is within sixty days. All sales in that Exchange are perfected for actual delivery and for full payment at the time of delivery.

Investment, insofar as it is distinguished from speculation, simply signifies the purchase of securities for the full price paid: then the securities are kept for the annual income. One example of speculation, for there are also others: The buyer gives an order to an Agent to buy a determinate number of stocks at a determinate price, or at the prevailing price, and at the same time deposits with the Agent a sum of money which is equivalent to ten percent of the whole value of the stocks. The Agent executes the order in the Exchange itself. Afterward, if the purchased titles are active, the business is sent to a special office, and if it is not eliminated by it, the Agent who sells must deliver the stocks before a quarter past two in the afternoon of the following day; the buying Agent must give a certified check for full payment. Then he takes the stock and obtains credit from the Bank on account of it. The client of the buying Agent can now give an order that he sell the stock when the price has increased, and his profit is the difference between the price of sale and of purchase after subtracting the price of the commission given to the Agent and the interest of the credit obtained from the Agent. In these and similar operations no special difficulty seems present. Yet there are such negotiations which are very dangerous: for the price is artificially diminished or increased by false rumors being spread; or by monopoly it grows beyond value, and they are entered into by those who here and there cannot pay the differences: in these cases justice is also violated. - Cf. Ball.-Palm., v. 3, p. 796. - Bulot, n. 838. - Genicot, n. 665. - The Work of Wall Street, Sereno S. Pratt. - The A. B. C. of Wall Street, S. A. Nelson. - Gury, Cas. Conscien. de Emptione, n. 17.

I. QUESTION I. Is a game undertaken principally for the sake of gain vicious? ANSWER. Gabriel, Toletus, and others affirm it. But others deny it. It is no sin, says de Lugo, disputation 31, to ordain a means to an end which is useful, if the end be lawful. Gain is a lawful end. Therefore the game also. This opinion, which I repute false, St. Thomas disapproves, II-II, q. 77, art. 4, where he lays down that merchandise itself, which is for the sake of seeking gain, has a certain baseness, because it serves cupidity. Public or private utility renders it lawful. A game by its own nature is instituted for the recreating of the mind. The end of a game is the solace of the mind, not gain. Therefore gain disturbs the order, and turns the game away from its end.

II. This gainful game the younger authors place among contracts, and define it: a contract in which a thing exposed by either party is attributed to the victor of the contest. They assign three conditions that it may be lawful. First, that the players have the free faculty of disposing of the thing which they expose in the game. Hence they say that those sin who play with a robber, a boy, a depositary, a fool, a son of a family, a prodigal, a cloistered religious. Second, that the game be lawful it is required that the one do not induce the other to the game by frauds, guiles, or reproaches. Third, that no frauds against the laws of the game intervene.

III. I reject this gainful game as never lawful, and as pernicious to families and to the commonwealth. The conditions which the younger authors prescribe can hinder a greater malice, but they cannot confer honesty upon a gainful game. The degree of malice I know not, although I know that a gainful game is vicious. Those who accidentally and against custom should lay out some money even principally for the sake of gain I would not condemn of grave fault. On the contrary, those who in the custom of playing were engaged principally for the sake of gain I would not free from grave fault, nor would I absolve them, unless they left off this custom. Since scarcely, and hardly even so, does it happen that grave absurdities do not follow such a custom. At first the game is undertaken for the sake of delighting the mind; but that in its progress and end it falls away into avarice and the ruin of families, experience teaches.

IV. QUESTION II. Is a game of hazard or fortune lawful? ANSWER. The civil laws themselves, Digest, On the Use of Dice, laws 1, 2, 3, severely forbid this game. There are added the peculiar laws of every kingdom, and canon law, chapter Episcopus, distinction 35, where laymen giving themselves to dice are deprived of communion, and upon clerics, deacons, and priests the penalty of deposition is imposed. The Council of Trent, session 22, chapter 1, renews the ancient canons against clerics giving themselves to dice.

V. And so a game of chance or hazard for the sake of gain is by its own nature vicious. Besides, games of cards which depend not upon industry but upon fortune, such as are the games commonly called Bassetta, Faraone, Trissac, and of dice, carry with them so many dangers that I would admit no one to the sacraments unless he first left off and said farewell to these games. Aristotle says that these gamesters and robbers are the same. Concerning the games of cloistered religious see what I have written in the Apostolico-Monastic Discipline, dissertation 6, chapter 4.

VI. Those who set out public tables for gaming, and receive players into their own house, sin mortally and are to be kept from the sacraments, as even the more kindly authors commonly affirm. Similarly St. Antoninus in his Formula of Confession, part 1, chapter 3, and part 2 of the Summa, title 1, chapter 23, § 13, teaches that makers of cards and of dice are not to be absolved. The opposite not a few teach. See what has been said concerning scandal.

VII. QUESTION III. Are wagers, commonly called scommesse, lawful? ANSWER. Sylvester, Gabriel, St. Antoninus, and others deny it. But the younger authors commonly affirm it. The discourse is not of wagers which are wont to be made by accident for the sake of recreation, but of gainful wagers, which are commonly wont to be made upon the outcome of wars, upon the victory or loss of players. Wagers of this kind can scarcely be purged of vice.

VIII. Cardinal de Lugo, disputation 31, section 6, no. 74, teaches that a wager can lawfully be made which will come about with the loss of a neighbour: because, he says, although occasion be given to the wagerer of wishing for Peter's death, this nevertheless is by accident. And at no. 75 he adds: It is inferred, secondly, that neither is it of its own nature unlawful to make a wager upon a sin to be committed by some third party. So Sánchez with others. What is the object of that wager? A sin. Is it honourable? What is the end? Gain. Is it holy? Holy, says Augustine, is that which we will. But it is more often not holy but depraved and vicious. For the paradoxes of Fr. Caesar Callini concerning gainful games, see Vol. VII, Book 3, dissertation 4, chapter 15.

I do not speak of gains made through games of lawful industry, which one may use moderately for refreshment; for this is the virtue of Eutrapelia, as Aristotle teaches in book 4 of the Ethics, chapter 8, and St. Thomas in question 168, article 2, and commonly others. What is acquired in this way is not to be restored.

The question therefore concerns games that depend wholly, or for the greater part, on chance; and thus the game of dice is forbidden to all, both Clerics and Laics, C. Episcopus 35, distinction; and C. Clerici 2, extra, de vita et honestate clericorum, and l. solent ff. de aleae usu et aleatoribus. And Auth. alearum usus, C. de religiosis et sumptibus fund. Under this game, too, all similar games of chance are forbidden, as Navarra observes, chapter 20, number 6, Valencia question 6, point 5, with St. Bonaventure in the place cited.

The question is: whether dominion is acquired by such games.

The FIRST opinion is that dominion is acquired, if there be no fraud or deceit, and the player may alienate what he wins, and no law exists forbidding the transfer of such dominion. So Alensis, book 4, question 86, member 3, article 6; Adrianus de Restit.; Ioan. Maior in 4, distinction 15, question 13; Gabriel, same distinction, question 13, articles 1 and 2; Couar. in Reg. Peccatum, part 2, § 4; Caiet. 2. 2, question 32, article 7, and in the Summa, v. Ludus; Ioan. Medina de rebus restituendis; Sotus, book 4, de Iustitia, question 5, article 2; Navar. in Manuale, chapters 20 and 29; Valencia, disp. 5, question 6, point 5; Fagundez in octavum Praeceptum, chapter 17, number 11; Molina, Tract. 1, de Iustitia, disp. 99; Syluest. v. Lex, question 18; Castro, question 41; Salon. question 5, de dominio, article 6; Lessius, book 2, chapter 16, dub. 3; Tannerus, dub. 8. And much more strongly do those hold this who say that he is not bound to restitution who, having lost much money at dice, compelled the player to persist in the game and redeemed all the losses and others besides, as Lessius, book 2, chapter 26, dub. 1; Gerfias de contractibus, part 2, chapter 19; Diana, part 1, Tract. 17, resol. 27; and those who compel payment of the money lost at dice: Azor. part 3, book 5, chapter 24, question 7; Bannes 2. 2, question 32, article 7; Rebell. part 2, book 12, question 8, number 6; Salon. 2. 2, question 62, article 6, question 5.

The SECOND opinion is that winnings from such games are subject to restitution. So Palud, book 4, distinction 15, question 3, article 5; Rich. article 5, question 8; Panorm. on cap. Clerici 2, de vita et honestate clericorum, and on cap. Quia plerique, de Immunitate Ecclesiae; and certain other Canonists whom Gabriel cites, book 4, distinction 15, question 13, article 1. St. Bonaventure in 4, distinction 15, part 2, article 2, question 1, is also alleged by Valencia and others.

BUT let us hear the Saintly Doctor in his reply to the fourth objection. For when he had said that a possessor in bad faith cannot spend in alms the things he possesses in bad faith, such as stolen goods, he adds: If, however, the question concerns a gambler, it must be said generally that he is a possessor in bad faith and possesses under an unjust title; and therefore he must in no way keep for himself what he has won, since such a game is base and reprobate, against God and against all the laws. Whether, however, he is bound to restore, some distinguish: for either the one from whom he won is such a person as cannot govern his own affairs, as for instance a Minor, or a Pupillus, a Deaf man, a Mute, or one languishing with perpetual disease; and thus he is bound to restore. But if he is such a person as could lose; or whether he was dragged into it and induced by him, or not: if he was dragged in by him, he is not bound to restore to him, because to him no repetition belongs in vindication of sin, but he may make alms of it. But if he himself dragged him in, he cannot make alms of it, but is bound to restore, at least in the forum of conscience; because, although no one wishes to lose, nevertheless he who does not wish to lose, nor to play, but is induced, seems less culpable; and the other who induces, more so; and therefore the former ought not to be damaged, nor ought the author or the inducer to be in any way bettered: yet no one may on that account convert any of the acquired gain to his own uses. The same judgment must be made concerning Tournaments; and it must be said that in those pacts which they make among themselves, goods are not transferred between them, but are turned to the uses of the poor on account of the dishonesty of the game and the interdiction of the law. Thus St. Bonaventure.

Likewise in the Speculum animae, chapter 2, he says: The fifth fruit of rapine is the game of dice, or of dice-boards, which is forbidden both by Canonical and by Civil law. Hence some say of it that it is mortal sin, in that it is against Canonical and Civil law; and that what is gotten from play is possessed under no good title, nor can it be retained, but ought to be distributed to the poor. For he who gains in play gains unjustly, and he who loses loses justly; therefore he who gains is not bound to restore to him from whom he gained, unless perhaps he induced him to play. But since play seems to have from its root the character of mortal sin, because it evidently proceeds from avarice, and because many sins are communicated in play, namely fraud, lying, perjury, blasphemy, scandal, and frequently the loss of time, therefore this seems to be the cause of the prohibition of play. When one plays for the sake of recreation, with the aforesaid sins excluded, it does not seem to have the character of mortal sin. Thus the Saintly Doctor.

From all this you have that St. Bonaventure spoke as reporting the opinion of others, and is not to be reprehended by Valencia and others in anything.

First, indeed, he says that the game of dice is forbidden by both Laws; and this I showed above, with the laws adduced.

Next he teaches that playing at dice and dice-boards seems on this account to be mortal sin.

As for Clerics and Religious, they sin mortally by transgressing these laws, where the contrary has not been abrogated by custom, if they play for a notable sum, and especially from the fruits of benefices, as Navar. chapter 20, number 9 and Sotus, book 4, de Iustitia, question 5, article 2 assert, although Cajetan sometimes hesitates in doubt concerning Clerics who are prelates. The same he asserts in the Summa, verb. Ludus; concerning these Sotus asserts the same less doubtfully, and it is proved from C. Episcopus 35, distinction, and C. Inter dilectos, extra, de excessibus praelatorum, where a cleric is ordered to be deposed for the use of dice, a penalty that is not inflicted except for mortal fault, as is gathered from C. Non affirmamus, 24, question 1 — Valencia subscribes.

¶ As for Laics, however, Navarra, Sotus, Cajetan, and Valencia himself judge that they do not sin mortally, the other few circumstances against the natural law being excluded, of which mention was made above. The reason is that either those laws do not bind Laics so severely, and are derogated by custom, at least as regards mortal sin. The Saintly Doctor speaks almost in the same way and to the same effect.

He adds, that these games are not forbidden by these laws and Decrees if they are instituted principally for recreation: and this the Doctors gather, and among them Valencia from l. Quod in convivio, ff. de Aleae usu; but if it is exercised principally for gain, as Navarra notes, number 6, and Valencia in the place cited from the cause.

He teaches, therefore, that he who dragged another in, and efficaciously induced him to play, if he prevails, is bound to restitution; the same St. Thomas asserted, question 32, article 7, ad 2; and Valencia teaches this to be clear even before the sentence of the Judge; and he alleges the Doctors related above for his opinion; for this St. Thomas signified by the same words concerning him who dragged another to play; but Valencia says that traction is understood not as any kind of attraction whatever, for this does not suffice to impede the translation of dominion — in which Adrianus, deceived, expounds St. Thomas badly, as Valencia, Couar., and Medina, adduced above, noted — but it is understood of violence, with manifest force, or with most importunate prayers, which suffuse with shame, for instance if he object that he is a poor man, as the same Doctors above expound, and with them Valencia.

Furthermore, that he is bound to restitution — besides those alleged by Valencia — hold Clavis reg. l. 11. cap. 15; Malderus 2. 2, Tract. 1, chapter 12, dub. 3; Fernandez in suo examine Theologiae moralis, part 1, chapter 15, § 6; Molfesius Tom. 2, tract. 12, chapter 21, number 59. Add Toletus book 5, chapter 27; Megalam 2. 2, book 2, chapter 19, question 2, number 16, speaking of him who knows and compels his companion to persist in the game, and recovers what was lost, and besides gains other things besides: they say he is bound to restore at least these super-gains, as Diana relates, part 1, resol. 27, adding it for the opinion of St. Bonaventure; Alphonso de Vega in summa, part 2, chapter 13, case 12; Rebellius de obligatione iustitiae, part 2, book 12, question 3; Azorius part 3, chapter 29, book 5, question 1; Valencia loc. cit.; Comitolus in resolutionibus Moralibus, book 3, question 9; Salam Tract. de Ludo, disp. 6; Bannes, and Aragon. 2. 2, question 32, article 7, ad 7.

It is proved, because he who thus plays plays involuntarily. This is the reason of St. Bonaventure above, which opinion, because of the reasons by which it is supported, Reginald says is to be followed, Tom. 1, book 10, chapter 25, number 385; and Diana judges it not improbable, loc. cit., and Lessius book 2, chapter 26, dub. 2, number 9.

The Saintly Doctor adds that he who was dragged in and won is not bound to restore, which nearly all those alleged sustain. The reason of St. Bonaventure is that the privilege of repetition, granted by law, does not belong to the one who dragged him in, because by the dragging he renders himself unworthy of it.

He asserts also that he who won money — truly in a notable sum — from those who cannot govern their own affairs, whom he enumerates with other similar cases, is bound to restore; which Valencia also holds, loc. cit., and others with him. Nay, Molina tom. 1, disp. 142; Sanchez book 6, disp. 38; Lessius book 2, chapter 17, dub. 8, after the Gloss, Navarra, Lopez, Corduba, and others with Sanchez, teach that boys within a decade and a half year of puberty, and girls within nine years and a half, remain naturally bound by onerous contracts, yet not concerning immovables and other things that must be preserved for themselves — unless, however, they contract even with Tutors. Which doctrine relieves Confessors of the burden.

Whether, however, he who neither dragged another in, nor was dragged, but played as an equal partner, is bound to restitution, he defines nothing; he only says, If he acquired, he is a possessor in bad faith, inasmuch as he acquired against the laws, and he ought not convert those monies to his own uses, but ought to give them to the poor, because absolute dominion is not transferred peacefully, inasmuch as the laws resist and give rise to repetition, and because it is base gain, acquired against the laws. Yet he does not assert this in his own settled sense.

For therefore he who lost is not compelled to pay in court, and an action is given for recovering what was lost, if he has already paid — which the Saintly Doctor understands after the sentence of the judge, with Medina, Couar., Soto, and others who thus expound St. Thomas, with whom Valencia subscribed.

Finally, that he who lost is not bound in conscience, and played in hope and in good faith, teach Malderus 2. 2, tract. 3, chapter 12, dub. 3; Lessius book 2, chapter 26, dub. 4; Aragon. 1. 2, question 21, article 7, and question 62, article 1; Ledesma Tom. 2, tract. 31, chapter 2; Molina Tom. 2, tract. 2, disp. 515; Philiarc. T. 2, p. 2, book 5, chapter 2, number 11; Toletus book 5, chapter 27; Diana part 1, Tract. 17, resol. 8, and Tract. 5, resol. 44, and Tract. 4, resol. 169.

The same he says of him who won from one playing with false cards. The reason is that to him to whom an action for recovering is given, an exception not to pay is conceded a fortiori, according to the rules of both Laws; but in a forbidden game, as I said, an action for recovering is given. Medina subscribes, book 1, chapter 14, § 29; Couar. reg. Peccatum, part 2, § 4, number 8; and eighteen Doctors with Salam Tract. 1, de contractibus, disp. 20.

¶ Understand this standing in the common law; for if in some places repetition is not granted to the loser, nor is the exception conceded that he need not pay.

¶ This is the opinion of St. Bonaventure loc. cit., where he concedes repetition to him who lost, and consequently the exception not to pay.

Many, however, with Diana teach that he is bound to pay; Azor. part 3, book 5, chapter 24, question 7; Bannes 2. 2, question 32, article 7; Rebell. part 2, book 12, question 8, number 6; Valencia loc. cit.; Salon. 1. 2, question 62, article 6, question 5; Garzias de contractibus, book 2, chapter 29; Tanner. disp. 4, question 6, dub. 11; and others. The reason is that a promise, unless it is void by the law itself, binds: but this one in play is not void, but only an action for recovering is given, l. Alearum, C. de Religiosis et sumptibus.

GREAT excitement some time since was caused by the Government’s proposal to tax betting transactions. Mr. Snowden denounced it in the House of Commons, several Nonconformist religious bodies have declared that they are opposed to it, and even some sections of the Church of England have raised their voice against it. The chief objection against the proposal, and the only one which concerns us here, is that the proposed taxation would be against sound morality. A writer in the Guardian acknowledged that it was difficult to draw the line between a bet which is harmless and gambling which is ruinous, but he would have the moralist decline to attempt to draw such a line; he quoted Pascal to the effect that the heart has reasons of which the intellect knows nothing.

But, surely, if we want sound ethics we must appeal to reason and not to sentiment. It is often difficult to draw the line between what is right and what is wrong, but there is no other way of obtaining a code of rational morality. All right rules of conduct are a mean between two vicious extremes. The right use of money is the mean between stinginess and extravagance, and so with all virtues except divine charity. Divine charity is the end of all virtue; it is the measure of all virtue, and we cannot have too much of it. But of all other virtues we may have too much as well as too little, and so if we want to have moral rules for the guidance of our conduct, we must necessarily draw the line, separate what is defective from what is excessive, and thus define what is right and what is wrong.

Betting is not necessarily wrong. A man intends to go on a short holiday at the week-end. On Friday morning he says to a friend: “I think it will be a fine day to-morrow.” The friend prides himself on being weather-wise and he answers: “I'll bet you a shilling that it will rain.” “Done,” said the other “I’ll take your bet.” Few people would maintain that such a bet as this is morally wrong. We suppose that both parties can spare a shilling, that both intend to pay if they lose, that nobody suffers in consequence of the bet. As one might give the other a shilling as a present if he chose, so he may pay a shilling to the other according to agreement, because he was wrong in his forecast of the weather.

But, as everybody knows, betting is liable to abuse. Money may be staked of which the bettor has not the free disposal, or more than he can afford. If he loses his bet he may be ruined, or he may be sorely tempted to commit theft or fraud in order to get wherewith to pay. Frequent betting becomes gambling, and a very dangerous habit is formed. Gambling encourages idleness, leads people into bad company, and very frequently ends in ruin. Gambling, then, or playing for high stakes, is usually wrong for one reason or another. In other words, betting may be unobjectionable from the point of view of morality if it is indulged in sparingly and under certain conditions. It may be compared to drinking intoxicating liquor. It is not wrong to drink a glass or two of beer or wine if you can afford it; it is wrong to drink to excess or more than you can afford to pay for. It was necessary to try to get clear notions about the morality of betting before going on to consider the question of the morality of the taxation of betting. The two questions are connected, but they are not identical. With regard to an institution which is certainly immoral I can well imagine a most moral Government saying to itself: “I cannot suppress you; if I attempted to do so I should probably do more harm than good. But I know that you are making a great deal of money. I will tax you, and that, at any rate, will have the good effect of diminishing your profits, and preventing others, perhaps, from imitating your example, induced thereto by the hope of realizing the excessive profits which you realize at present,”

Is there, then, anything objectionable, from the point of view of sound morality, to the proposal of the Government to tax betting transactions? I cannot see that there is anything objectionable to the proposal. As to the assertion of Mr. Snowden that the proposed tax would patronize, legalize, and make respectable one of the greatest curses of the country. I must say that I fail to see it. After all, to tax a man is hardly to patronize him or make him respectable. Such an argument may come well enough from His Majesty’s Opposition in the House of Commons, but it hardly produces conviction when it is read calmly in the quiet atmosphere of one’s room. The taxation of intoxicating liquor offers a complete parallel. In the case of intoxicating liquor, taxation does not patronize or legalize drunkenness, or make it respectable; how, then, could taxation patronize or legalize gambling, or make it respectable ? Without qualms of conscience on the part of the most scrupulous, the Government obtains a large annual revenue from the taxation of intoxicating liquor; why should it not endeavour to raise a little money by the taxation of betting? Drinking intoxicating liquor is a luxury, and so is betting.