Question Two. Whether Anyone Who Has Unjustly Taken Away or Retains Another’s Property is Bound to Restore it such that He cannot be Truly Penitent without such Restitution

65. Second I ask whether anyone who has unjustly taken away or retains another’s property is bound to restore it, such that he cannot be truly penitent without such restitution.

66. That he is not:

Because restitution is no part of penitence; so there can be penitence without it. The proof of the antecedent is that restitution is not contrition nor confession (as is manifest); nor is it satisfaction, because that is ‘voluntary giving back of something otherwise not due’, from the preceding question [n.11]. This restitution is otherwise due, because if a man had not sinned and was in possession of another’s property he would be bound to restore it;     therefore etc     .

67. Again, this could be proved through satisfaction’s parts [nn.12-15], under none of which is restitution contained;     therefore etc     .

68. Again, no one is bound to what is impossible, because ‘let him be anathema who says that God has prescribed the impossible’, as Jerome says [in fact Pelagius, Book on the Faith to Pope Innocent, n.10; Lombard Sent. II d.36 ch.6 n.3]. But sometimes it is impossible to restore someone else’s property to him whose it is, as when it is not known whose it is. This can happen either because one does not know where he from whom one had it is, or where anyone close to him is to whom one may restore it in his stead, or in some other case - as when one find another’s property and not know whose it is.

69. Again, no one is bound to a restitution more damaging to himself than the thing is useful to him to whom restitution should be made. But sometimes, if he to whom restitution is to be made is doing business in far off places, no restitution can be made to him unless a greater expense than the whole of what is to be restored be laid out in sending it; therefore, in that case he is not bound.

70. Again, Ethics 1.1.1094a9-10, “the common good is more divine and to be preferred than the particular good;” but it is possible that a restitution to be made to Peter is damaging to Paul who restores it, and in this more damaging to the Republic, namely because Paul is more necessary to the Republic than Peter; therefore in this case he is not bound to make restitution.

71. Again, everyone is bound to love himself more than his neighbor, according to the remark in Song of Songs 2.4, “He has ordered me in charity;” therefore when restitution is damaging to oneself (as when one is in extreme necessity), one is bound rather to hold it for oneself than, out of love for another, restore it to the other.

72. Again, restitution is to be done in favor of him to whom it is done;     therefore it is not to be done when it leads to his loss, nor either when it would lead to loss for the republic; but a sword returned to someone mad would be to the loss of him to whom it is restored, because he would use it badly, and also to loss for the republic, because it would harm the peace of the city; therefore etc     . And likewise can it be argued in cases when restitution involves either a loss attached to him for him it is done, or a loss attached to the republic.

73. Again, when an adulteress conceives a son from adultery, the supposed son of the husband defrauds the true heir of his heredity, and yet the woman is not bound to restore the heredity to him;     therefore etc     . The proof of the minor is that she could not do it without infamy to herself, which no one is bound to, rather bound to its opposite, and more evil would follow, namely wife-killing, if the husband were to learn of the crime.

74. Again, someone can procure an ecclesiastical benefice for himself by taking it away, through his looking after it, from another; but he is not bound to restore it to that other;     therefore etc     .

75. On the contrary:

Augustine Epistle 153 to Macedonius ch.6 n.20 (and it is in Lombard’s text, Sent. IV d.15 ch.7 n.9 [from Gratian, Decretum p.2 cause 14 q.6 ch.1]), “As long as the thing, for which the sin was, is not given back, if it can be given back, penitence is not done but feigned.”

76. And (from Gratian, ibid., from the same epistle), “Sin is not dismissed unless what is taken away is restored.”

77. Again, Exodus 22.1-13, where the precept is given for things unjustly taken to be returned; and a penalty is added, ibid. 21.16, where it is said as follows: “Who has stolen a man and sold him, and is convicted of harm, let him die the death.”

I. To the Question

78. Here four things are to be looked at: first, whence it is that the ownershipThe Latin is literally ‘lordship’ or ‘dominion’, that is, what belongs to the ‘dominus’, the lord. Since in context the discussion is about a lord in the sense of an owner of property, and not in the sense of someone with a special status of political or ecclesiastical dignity (or even less in the sense of God as Lord), the word has been translated accordingly. ²¹ of things is distinct, so as for this to be called ‘mine’ and that ‘yours’, because this is the foundation of all injustice in handling another’s property, and consequently of all justice in restoring it; second how ownerships made distinct at the beginning may justly be transferred; third, from this will be plain what the unjust taking of another’s things is, or what causing loss to another in temporal matters is; fourth, how such a person is bound to restitution.

A. Whence it is that there is Distinct Ownership of Things

1. First Conclusion

79. On the first point [n.78] let this be the first conclusion, that by the law of nature or the divine law there are, for the state of innocence, no distinct ownerships of things; on the contrary, all things were then common.

80. The proof is from Gratian, Decretum p.1 d.8 ch.1, “By the law of nature are all things common to all men.” And for this is adduced Augustine On John’s Gospel ch.2 tr.6 n.25, who says “By what right do you defend the villas of the Church, by divine or human right? The first right we have in the divine Scriptures, the human right we have in the laws of kings. Whence does each possess what he does possess? Is it not by human right? For by divine right ‘The Lord’s is the earth and its fullness’ [Psalm 23.1]. Surely the one earth by human will bears both poor and rich? Therefore, also by human right is it said, ‘This house is mine’, ‘This villa is mine’, ‘This servant is mine’.” Again in the same place, “Take away the laws of the Emperor. Who will dare say, ‘This villa is mine’?” And later in the same place, “By the laws of kings are possessions possessed.” And Gratian, Decretum p.2 cause 12 q.1 ch.2, “Common to everyone should have been the use of all things that are in this world.”

81. The reason for this is double:

First, because the use of things according to right reason ought so to belong to men as befits peaceful conversation and necessary sustenance; but in the state of innocence common use without distinction of dominions was of more value to each of them than the distinction of dominions, because no one would then have seized what would have been necessary for another, nor should that need to be wrenched away from him by violence, but each would have taken for necessary use what first confronted him.

82. But also, there would have been there a greater sufficiency for sustenance than if the use of something were precluded from someone by an appropriation of it made to another.

2. Second Conclusion

83. The second conclusion is that ‘this precept of the law of nature about having all things common was revoked after the Fall’.

84. And reasonably, for the same two reasons:

First because the community of all things would be against peaceful conversation, since a greedy bad man would seize more than would be necessary for himself, and this too by inflicting violence on others who might want to use for necessity among themselves the same common things, as is read of Nimrod [Genesis 10.9], that “he was a mighty hunter in the presence of the Lord,” that is, an oppressor of men.

85. Again, it would be against necessary sustenance for the same reason, because the stronger fighters would deprive others of necessities.

86. And therefore the polity of Aristotle, Politics 2.1-2.1260b27-61b15, because not all things are common, is much better than the polity of Socrates (which Aristotle blames) about all things common - according to this condition that Aristotle finds among men.

3. Third Conclusion

87. The third conclusion is that ‘when the precept of the law of nature about having all things common was revoked, and when, as a result, the license to appropriate and make distinction between common things was conceded, no actual distinction was made by the law of nature or by the divine law’.

88. Not by the divine law, as is proved by the remark of Augustine adduced above [n.80], “By what rights”

89. Not by the law of nature, as seems to be probable, because it does not appear that the law of nature may make opposite determinations, and that law has made determination in the case of human nature to the fact that all things are common.

90. Nor may it be said that the proposition in the Institutes of Justinian (II ch.1 n.12, ‘About the division of things’, ‘Wild beasts’), that “What among goods is no one’s, is conceded to him who occupies it,” belongs to the law of nature. But although, immediately after natural apprehension of the fact that things are to be divided, that proposition arises as probable and manifest, yet it is more reasonable to say that it is not of the law of nature but of the positive law. And from this follows that distinction of ownerships was first made by some positive law.

4. Fourth Conclusion

91. Therefore, so that this law may be just, one must see how such positive law may be just.

92. Let the fourth conclusion be then that ‘a just positive law requires in the legislator prudence and authority’.

Prudence, so that the legislator command according to practical right reason what must be established for the community.

Authority, because ‘lex’ (law) comes from ‘ligando’ (‘binding’), but no sentence at all of a prudent man binds the community, or anyone, if there is no one presiding.

5. Fifth Conclusion

93. Now as to how prudence for thinking out just laws will be obtainable is sufficiently plain; but as to how just authority (which is required along with this for a just law) will be obtainable follows as the fifth conclusion, because there is a double principality or authority, namely paternal and political - political authority being double, namely in one person or in the community.

94. The first, namely paternal authority, is just by the law, surely, of nature, whereby all sons are bound to obey parents. Nor is this law revoked by any positive law, Mosaic or Evangelical, but rather confirmed by it.

95. Now political authority, which is over those outside [sc. the family], whether it reside in one person or in the community, can be just by the common consent and choice of the community itself.

96. And the first authority [sc. parental] regards natural descent, though not those living together in a civic community.

97. The second authority [sc. political] regards those living together, however much they are not conjoined to each other by any consanguinity or closeness - for example, if certain unrelated people came together for building or inhabiting a city, they could, on seeing themselves unable to be well ruled without some authority, agreeably consent to commit the community to one person or to the community, and to one person either as to himself alone (and a successor would be chosen as he was), or as to himself and all his posterity. And each of these political authorities is just, because anyone can justly submit himself to one person or a community in things that are not against the law of God, wherein he can be better directed by him to whom he submits himself than by himself.

98. Therefore we get completely how a just positive law can be founded, because founded by one who has prudence in himself or in his counsellors, and who has, along with this, an authority that is just in one of the ways stated in this [fifth] conclusion.

6. Sixth Conclusion

99. From these follows a sixth conclusion, that distinction of ownerships can be just by just positive law, whether passed on by a father or a prince justly sovereign, or by a community justly directing or ruling.

100. And that it was done in this way is probable, for either Noah after the Flood distinguished lands for his sons, which they were singly to take for themselves or for their sons and posterity; or the sons themselves, by common agreement, divided lands among themselves, as is read in Genesis 13.8-9 about Abraham and Lot, because Abraham gave to Lot himself the choice as to which part he wanted to choose, and he would take the rest.

101. So some law was promulgated by the father, or by someone chosen by them as prince, or by a community to which the community itself committed this authority -which law, I say, was or could be that things then not occupied would belong to the first occupier; and then afterwards they dispersed themselves over the face of the world, and one of them occupied one place and another another.

B. How Ownerships, Distinct at the Beginning, are Justly Transferred

102. About the second article [n.78] I say that the transfer of things can be either as to ownership (namely so that things pass from the ownership of one to the ownership of another), or as to use or right of use while yet ownership remains with the same man (and justice or injustice in transfer of use have rules of different form from just transfer of ownership). This transfer of ownership, therefore, can happen either by public or princely authority, or by the authority of the law, or by the private authority of the owner himself who is in immediate possession.

1. First Conclusion

103. About the first transfer [n.102] let this be the first conclusion in this article, that transfer of ownership by authority of just law is just.

104. The proof is that, if a just law could have justly determined the first ownerships, and the authority of the law or the prince is not lesser (which I hold here to be the same after the division of ownerships as before), therefore can ownership be for the same reason and the same effect justly transferred after it has been appropriated to someone.

105. And from this I say that prescription in fixed property, and long use in movable property, is just transfer.

106. The proof is from Gregory IX, Decretals, with glosses, II tit.26 ch.5, ‘On Prescriptions’, ‘To the Vigilant’, gloss on ‘Others’ Property’.“Others say, which seems truer, that he who possesses another’s fixed property by prescription is no longer bound to give it back, because it would not now be another’s but his own, and he possesses it justly.” ²²

107. There is proof also through reason, in two ways:

First as follows: justly can that be established by the legislator which is necessary for the peaceful conversation of the subjects; but the ownership of something neglected, as it is neglected in prescription and long use, must be transferred to the occupier of it for the peaceful conversation of the citizens; because if ownership were not transferred to this occupier but were to remain with the former one, who treats the thing as abandoned then, after a time however long, there would be lawsuits undying, for, after a time however long, he who neglected the thing or his heir would ask for the neglected thing back, however long occupied by some other or others; and the lawsuits would be such that it would be impossible to cut them off, because impossible even to get sufficient proof; and from such perpetual lawsuits would arise disputes and perhaps feuds between the litigants, and thus the whole peace of the republic would be overthrown.

108. The second reason is that the legislator can punish justly by law a transgressor whose transgression turns to the detriment of the republic - and if he can punish with a bodily penalty, much more so with a monetary penalty, and do this by applying it to the treasury. Therefore he can, for equal reason, punish him with this sort of penalty and do so by applying what he is punished in to someone who is, in this regard, a minister of the law. But he who is for so long a time negligent about his own property transgresses in such a way that his transgression is to the detriment of the republic, because it is an impediment to peace. Therefore, as the law can justly apply the neglected thing to the treasury, so can it, for greater peace, transfer it to him, as to someone serving as minister of the law, who is for so long a time in occupation of it.

109. And from this is plain how one should understand the presumption of right and from right against which no proof is admitted, namely because someone thus negligent of his own property treats it as abandoned. For even if this not be true in fact, yet the legislator did punish him as if he had treated it for abandoned; because he is in some respect like one who treats it as abandoned, and that respect, wherein he is like someone who abandons it, justly requires a like penalty.

110. This also appears probable by the fact that, if anyone at all be able to transfer his ownership to another, the whole community can transfer to anyone the ownership of anyone from the community (because I am supposing that in the factual reality of a community the consent of everyone is included). Therefore, the community, which possesses this consent as having been in a way already offered to it (by the fact that everyone has consented to the just laws that need to be passed by the community or the prince), can transfer, through a just law, anyone’s ownership [of property] to anyone.

2. Second Conclusion

111. Secondly, transfer can be done by act of a private person possessing ownership immediately over a thing [n.102]. And this can be either through an act purely liberal or through an act liberal in a certain respect. The first is when the transferrer expects no return; the second is when he does expect for what he transfers something to be returned to him.

112. About the first let there be this conclusion, which is the second of this article [n.103]: the owner of a thing who is not prohibited by law, or by a superior on whose will he depend in giving or transferring or donating, can donate his property to another willing to receive it.

113. The proof of this is that, because he was owner by an act of his own will, therefore by will he can cease to be owner; and there is someone else willing to receive it, therefore can he start to be owner. And no superior cause prohibits the first from ceasing to be and the second from starting to be owner. Therefore, by this donation, a transfer of ownership truly and justly takes place.

114. From this is plain what is required for a just donation: that there is liberal transferring on the part of the giver, and will of receiving on the part of him to whom the donation is made, and freedom on the part of both (of the former’s giving, of the latter’s receiving), and that by no superior law is the former or the latter prohibited, nor prohibited by act of another on whom in this transfer they may depend.

115. On account of defect of the second [sc. willing receiver] no one can give money to a Friar Minor, because he does not will to be an owner. On account of defect of the first [sc. free transfer by the giver] a monk cannot give without permission of the abbot, nor the son of the family without the will of the parent or parents, nor even a cleric in some case without the will, or at least against the will, of the Lord Pope, as is contained in Boniface VIII, Book Six of the Decretals, III tit.20 ch.1, ‘On Censuses’, ‘Roman’, for the observance of which chapter Gregory X set down a penalty, the chapter about which penalty is today in ibid. ch.2 (‘It demands’), namely that clerics making visits do not receive little gifts from those visited, and if they do, they are obliged to restore double - or let them not be absolved of the curse they ipso facto incur, as is said, Innocent IV, ibid. ch.1.

116. Now to this corresponds, in the case of transfer of use, liberal accommodation.A term that in the legal context means ‘bailment’, which is a relationship where the owner transfers to another the physical possession of personal property for a time, but retains ownership. ²³ And in order to be just it has similar laws, because it requires free will in him who accommodates, and it requires in him who receives that he has a will to receive the thing accommodated for his use, and that there is no will of law or prince standing in the way of the accommodation.

117. There is another transfer that is not purely liberal but where the transferrer expects an equivalence for that which he transfers, and it is properly called a ‘contract’, because the wills of the parties are there drawn together;‘Contract’ comes from the Latin contraho which literally means to draw (‘traho’) together (‘con’). ²⁴ for the former is drawn to transfer to the latter by the gain he expects from the latter, or that he expects to be transferred to himself.

118. Of this sort of contracts, wherein ownerships are transferred, some are transfers of a useful thing immediately for a useful thing, as wine for grain and the like, and it is called an interchange of things, ‘I give so that you give’ or ‘I give if you give’. Some transfers are of a useful thing for coin or conversely; for because it was difficult to exchange things for use immediately, therefore a medium was invented through which such exchange might be facilitated, which is called ‘coin’, and the exchange of coin for a useful thing is called ‘buying’, and the converse is called ‘selling’. But some transfer is of coin for coin and is called giving a loan, or accepting a loan. There are therefore six contracts in which ownership is transferred.

119. To these contracts correspond some contracts where the use, or the right of using, is transferred while ownership is retained. For to exchange of things corresponds mutual or interchanging accommodation, to buying corresponds leasing and to selling corresponds renting out. To the accepting of a loan there does not properly correspond anything in the transfer of the use of a thing.

3. Third Conclusion

120. As to the first transfer, namely exchange of things [n.118], let the conclusion be this (which is the third conclusion of this article): that the owners of things justly exchange them if they preserve, without fraud, the equality of worth in the things exchanged according to right reason - meaning here the conditions for a just giving expounded above [nn.114-115].

121. Explanation of the other conditions that are proper to just exchange [n.120]: As to what is first added, ‘without fraud’, it excludes fraud in substance, and quantity, and quality: in substance, so that brass is not exchanged for gold, nor water for wine; in quantity, namely so that whether quantity is measured by weight or some other measure, namely by a rod or something of the sort as to length or some bodily measure, as namely a sixteenth [of a peck], a peck, or the like, whether in the case of liquid or of dry goods - so that the just weight and, universally, the just measure be kept. Similarly in the case of quality, so that what is received from the other exchanger as pure wine not be exchanged for sour wine. And all these things are proved in Gregory IX, Decretals V tit.36 ch.9, ‘On Injuries and Damage Given’, ‘If by your fault’, “He who gives occasion for a loss, seems to have given a loss.”

122. But he who defrauds in substance him who thinks that, in making the exchange, he is receiving a different substance, or in quantity him who thinks he is receiving a different amount, or in quality him who thinks he is receiving a different quality, gives occasion for loss, because the other would not make the exchange if he did not think he was receiving a different substance, quantity, and quality; therefore he seems, not only according to the book on Refutations [Scotus, Refutations, q.39 nn.5-6, q.40 nn.13-16; Aristotle, Sophistical Refutations 4.166b10-14], but by presumption of law and in truth, to have given a loss.

123. There follows in the rule [n.120; inferred from Ethics 5.8.1133b18] that ‘the equality of worth is to be preserved’, which is proved by Augustine On the Trinity XIII ch.3 n.6, “To want to buy cheaply and to sell dearly is truly a vice.” And I understand this about a cheap and dear thing as concerns use, because often what is in itself a nobler thing in natural being is of less value and less useful for men’s use and, for this reason, less precious, according to Augustine, City of God XI ch.16, “Bread is better in a home than a mouse,” although however a living thing is simply nobler than a non-living thing in being of nature.

124. And for this reason there is added [to the rule, n.120] ‘in accord with right reason’ - namely reason that pays attention to the nature of the thing in relation to the human use for which exchange takes placde.

125. Now this ‘equality in accord with right reason’ [nn.123-124] does not consist in what is indivisible, as a certain doctor says [Henry of Ghent], who was moved by this, that justice keeps only the mean of the thing but the other virtues only the mean of reason; for this is false, as was made clear in Ord. III d.8 nn.58-62 [there citing Henry of Ghent].

126. On the contrary, in this mean, which justice in exchange has regard to, there is considerable latitude, and within this latitude (without reaching the indivisible point of equivalence of thing with thing, because, as far as this is concerned, it would be almost impossible for exchangers to reach it), justice is done to whatever degree it may, as to the extremes, be done.

127. Now what this latitude is, and how far it extends, is sometimes made known by positive law, sometimes by custom. For the law rescinds a contract where a contracting party is deceived above the mean of the just price; however if injustice below that mean appear on the other side, corresponding restitution should be made.

128. But sometimes it is left to the contracting parties themselves so that, after weighing their mutual necessity, they may reckon they are mutually giving and receiving the equivalent on this side and on that; for it is hard for there to be contracts among men where the contracting parties do not intend to return to themselves mutually something of the indivisible injustice, so that, to this extent, some giving away is concomitant to every contract. And if this is the way of people exchanging, which is founded as it were on this remark of the law of nature, ‘Do that unto others which you want to be done to you’ [Matthew 7.12, Luke 6.31; equivalent negative formulation in Tobit 4.16], it is probable enough that when they are mutually content, they wish to make return to themselves mutually, if in any respect they fail of the requisite justice.

129. There is an altogether like conclusion [sc. like the third conclusion, n.120] about justice in buying and selling [n.118], because it is as necessary to consider the coin there on one side as to consider here the thing exchanged.

130. I add that in both these contracts it is licit for the exchanger or seller to weigh his own loss, but not to weigh the gain of the buyer himself, or of the one he is exchanging with - I say this in the case of selling or exchanging at a dearer price.

131. And I understand it as follows: if someone is in great need of his own property and is induced, with great insistence by another, to sell it or exchange it for something else, since he could keep himself without loss and since by this selling or exchanging he suffers a great loss, he can sell it at a higher price than if he were otherwise selling or exchanging it without such a loss.

132. But if the buyer obtain a great advantage from the thing sold or exchanged, it cannot be sold or exchanged [sc. by me] at a higher price because a greater advantage will follow from the thing when sold to him. For neither is my property, because of his greater consequent advantage, more expensive in itself, nor is it better for me, and so it should not bring me a greater price. But it is otherwise when I suffer a loss, because then the thing is more expensive for me, though not in itself.

133. With these contracts, as was said [n.119], agree mutual accommodation, and leasing, and renting out. And justice must in like manner be kept as to the conditions already set down [n.114], considering it in respect of use there as in respect of ownership here.

4. Fourth Conclusion

134. About the last type of contract, namely the giving of a loan [n.118], let the fourth conclusion of this article be as follows: for justly contracting a loan, it is necessary to keep equality in number and weight simply (with the exception of certain cases that will spoken of at the end [nn.144-150]). The reason for this is assigned by some [Thomas Aquinas, ST IIa IIae q.78 a.2 ad 2, Richard of Middleton, Sent. IV d.15 princ.5 q.5] as follows, that the use of money is its consumption, therefore he who yields it as a loan consumes it.Richard: “Now the reason why nothing beyond the principal can be demanded for a loan but can be for something rented, is that a loan is of things whose principal use cannot be handed over without the thing itself, because the use of them is the using up of them...as is plain of money, which was principally invented for this purpose, that it be expended in the buying of other things; for this reason, when such sorts of thing are handed over to others, ownership of them is transferred to the latter.” ²⁵

135. Against this is objection made through ‘On the signification of words’, and it is today in [Boniface VIII], Sixth Book of Decretals V tit.12 ch.3, that the use of certain things is perpetually separated from ownership.The argument of Richard, and Aquinas, is that lending money is different from renting a house, say, because a house can be used without being used up, so that the owner of the house can retain ownership of it while selling the use of it (as by renting it). Consequently, after the rental period is over, the owner gets the house back and keeps the rent in addition. The same cannot be said of money because to use money is to use it up and so to possess it at the same time. There is no difference between use and possession that would allow charging ‘rent’ for the ‘use’ of the money. One gets back everything one lent when one gets the same amount of money back, and to get back extra for ‘use’ is ‘usury’ and wrong, because it amounts to selling the same thing twice. Scotus’ response is to deny, relying on Boniface VIII, that the use and ownership of money necessarily go together, or to deny the validity of the inference: money is used up in being used, therefore possession cannot be separated from use. However, as he explains in nn.136-137, usury is still wrong. For either (n.136) to loan money is to give possession, so that to get the loan back is to get possession back, and to get something extra back for ‘use’ as well would be to suppose one still somehow owned the money while it was being used when precisely one did not. Usury is wrong, therefore, because one sells what one no longer owns. Or (n.137) one can suppose that the lender still owns the money but that the gain that comes from the use of it comes from the borrower’s industry and not from the lender’s, so that the lender has no claim to the fruits of that use, or to extra payment because of it. ²⁶

136. It is possible, then, to assign the following reason, that in the giving of a loan ownership is transferred; for this is what the words indicate ‘I give you what is mine as loan’; therefore he who allows it as a loan does not remain owner of the loaned money, and consequently if he receives for the money something beyond the principal, he receives something for what is not his, or he sells what is not his.

137. The other reason is: let it be that the money remained his, yet the money does not of its own nature have any fruit, as some other things have that germinate from themselves; but only from someone’s industry, namely the user’s, does any fruit come. Now the industry of the user is not the industry of him who allowed the money; therefore, when he receives fruit from the money, he wishes to have the fruit of someone else’s industry, which however that other did not give him by the fact that from that other he accepted a loan exchange. And this is the reason why, by contrast, the fruit of pledges that do germinate is computed in the principal.

138. Excepted in this matter of loaning are two cases in general: for sometimes one can licitly receive more than the capital by agreement, sometimes not by agreement.

139. The first [by agreement] in three ways:

Namely by reason of conventional penalty, though however it may not be done for the fraud of usury. For example: suppose you need my money for trading, but I allow it to you up to a certain day, adding a conditional penalty that if you do not pay it on such and such a day (because I will otherwise be greatly harmed) you will pay afterwards so much more. This added penalty is licit, because it is licit for me to keep myself from damage by thus forewarning him with whom I contract. Now the sign that it is not for fraud of usury is this manifest one: when a merchant more want the money to be paid to him on a predetermined day than on the day after with added penalty; and by contrast it is for the fraud of usury when he wants the day to be missed rather than the money on that day to be paid.

The second is by reason of interest; for a debtor from whose non-payment the creditor is notably harmed, is held by justice to satisfy the creditor with interest. And although this creditor could not have an action in the external forum against the other, because for example pacts have perhaps not been entered into or have changed, yet in the forum of conscience the debtor is bound for interest beyond the principal.

The third condition is when both, namely the capital and what is superfluous, are put under uncertainty. This is proved from Gregory IX Decretals V tit. 19 ch.19, ‘On Usury’,“By reason of this doubt [sc. about greater and lesser valuation] is he also excused who sells bread, grain, wine oil, or other merchandise so as to receive for the same, within a certain time limit, more than they then are worth -provided, however, that at the time of the contract he had not been about to sell them.” ²⁷ and also by reason, using the argument from similarity, because just as uncertainty is an excuse there, so is it also here.

140. Also is [receiving more than the capital] licit without any agreement [n.138], because the mind alone without any verbal agreement, or other equivalent sign showing to the debtor that the lender would not lend without hope of gain, does not, when receiving more than the principal, make the lender to have what is another’s without agreement, and therefore he is not bound to restitution.

141. One needs also to understand that money has some useful use from its own nature, as for looking at or for decoration or for displaying possibility, as if one were rich, and for this end can it be rented like a horse or something rentable; and for this use can, while ownership is retained, money be received. And then is it in its totality a contract for renting or hiring (and not borrowing or lending), and a weight numerically the same should be returned, unless perhaps something equal in weight and value satisfy the renter.

142. These aforesaid rules show what is just and what unjust in exchanges immediately made, that is, when each exchanger at once gives or receives that for which he exchanges.

5. Two Other Conclusions or Rules

143. But when an exchanger does not receive immediately that for which he does the exchanging, but reception of this sort is deferred, the question is what is right or of law?

I reply: besides the aforesaid rules [nn.139-142] pertaining to the just and unjust in individual contracts for present time, I add here these two rules: the first is that the exchanger not exchange or sell time, because time is not his; second, that he not put himself in surety of making a gain, and him with whom he exchanges in surety of making a loss (I mean by ‘in surety of’, always or for the most part).

144. From these rules [n.143] are plain many particular cases; for example, let the feast of the Lord’s Nativity [December 25] be called a, and the feast of St. John the Baptist [June 24] be called b. A given exchanger hands over his property to another at a. Either he was going to sell it then, or was not but at b:

145. If so [sc. at a], either he determines the price then according as the time is running at a, and he does an act then of mercy, because he is supplying then the need of his neighbor (before he is bound to supply it), namely when waiting until b for payment of it. Or he determines a price greater than is just at a, and then he is a usurer, because he is, against the first rule, selling time [n.143]; this is proved from Gregory IX, Decretals V tit.19 ch.10, ‘On Usury’.

146. But if he was not going to sell now but at another time when it would seem that, according to the run of time, he could make more gain - either, therefore, he sets down a fixed price then, or he does not but leaves certitude about the price to depend on something in the future.

147. If in the first way [n.146], then if he lays down a price according to what the thing is now worth, there is no doubt but that he does a great mercy. If, however, he lays down a price greater than it is now worth, but not so immoderate a price but that at the time of payment the thing sold would likely sometimes be worth more sometimes less, he is, by reason of the doubt, excused, because he is doing nothing against the aforesaid rule [sc. the rule not to sell time, n.143]. This is proved from ibid. ch.19 [see n.139 fn. 26]. -And if objection be made against this from what is said there [ibid.: “provided that at the time of the contract he had not been about to sell them”], I reply: what is contained there is a useful warning, not a necessary precept.

148. But if he abandon determination of a price dependent on the future value of the thing, then either for the determinate time of the payment, or for another time when it is not as a rule customary for the thing to have a greater value than when he gave that thing of his - and then he does an act of mercy, for example: “I allow it to you at as great a price as it will be worth at b, or at some time before b,” although however the thing will be commonly accustomed to be dearer at b than at any preceding time.

149. But if he want the price to be determined for some indeterminate time, so that, in this way, he put himself for the most part in surety of gain and the other in loss, as for example ‘I want you to pay me as much for it as it will be worth at any time up to b when it sells more dearly’, it is usury, because he sets himself up or his party for the most part for gain, and him with whom he contracts for the most part for loss; and then he has for himself what happens for the most part, and against himself what happens for the least part.

150. And another injustice is there as well, because on some determinate day and not at some vague particular time must he set out his property for sale, and it might at that time happen that it would be sold less dear than in a day between a and b that was dearer; and consequently, in such a pact he makes himself certain of a gain further than human industry could attain.

151. These then are the stated rules about the just and unjust in any selling and lending for the time now or in the future - and saying this about household [‘economic’] exchange, which is when the exchanger intends to accept the thing for which he does the exchange, because he buys it not to trade it but to use it.

6. Two Final Conclusions or Conditions

152. What follows concerns business exchange, where the exchanger intends to trade with the thing he acquires, because he bought it not to use it but to sell it, and this at a dearer price; and this business exchange is called pecuniary or lucrative.

153. On this question I add, beyond the rules above set down, two things as to what is just [nn.154-156] and what unjust [n.157]: the first is that such exchange is useful for the republic; the second is that such an exchanger, in proportion to his diligence and prudence and risks in exchanging, may receive a corresponding reward.

154. The exposition of the first condition is that it is useful for the republic to have those who keep things for sale, so that these things can be readily found by the needy wanting to buy them. At a level beyond too, it is useful for the republic to have those who import necessary things that the country does not abound in, and yet the use of them is useful there and necessary. From this it follows that the merchant, who imports a thing from the country where it abounds to another country where it is deficient, or who keeps the thing he has bought so that it may be readily found for sale by him who wants to buy it, is performing an act useful for the republic. This as to the exposition of the first condition.

155. The second condition follows, that everyone who serves the republic in an honest work should live from his labor (‘honest’, I said, because of prostitutes and others who live dishonestly); but he who imports things or keeps them is honestly and usefully serving the republic; therefore, it is necessary for him to live from his labor. - And not this only, but everyone can justly sell his industry and care. He who transports things from country to country needs considerable industry in order to consider what things a country abounds in and needs; therefore, he can, beyond necessary sustenance for himself and his family, justly receive for this deputed necessity a wage corresponding to his industry. And beyond this, third, he can justly receive something corresponding to his perils; for from the fact that he transports things at his peril, if he is a transporter, or guards at his peril, if he is a guarder, he can, because of this sort of danger, unconcernedly receive something corresponding, and especially if sometimes, without his fault, he suffers loss in such service of the community (for example: a merchant when transporting sometimes loses a ship weighed down with the greatest goods; and another merchant, from a chance fire, loses the most precious things he is guarding for the republic).

156. In confirmation of all this is that a merchant can, if a legislator from the republic is not present, take for himself, without extortion, as much as a just and good legislator ought to repay a minister of the republic. But if there were a good legislator in a poor country, he ought to hire for a considerable wage such sort of merchants, so that they may import necessary things and conserve them after they have been imported; and not only should he find necessary sustenance for them and their family, but also compensate their industry, peril, and skill. Therefore, they can do this themselves as well when selling.

157. From these two conditions, required in just business, it is plain how some are blamable in doing business, as namely those who neither transport nor conserve nor improve things for sale by their industry. Nor is any other simple person made certain of the value of the thing to be sold. But he [the blamable business dealer] only buys so as at once to sell without any of these required conditions. He would need to be exterminated or banished from the republic. And he is called in Gallic a ‘regratier’ (‘regrater’ or ‘huckster’), because he prevents direct exchange between those willing to buy or exchange in economic manner, and consequently he makes anything that is sellable or useful more expensive for the buyer and cheaper for the seller than it should be, and thus he inflicts a loss on both sides.

C. What Unjust Taking of Another’s Things is, or What Causing Loss to Another in Matters Temporal is

158. About the third article [n.78] the answer is plain from what has been said, because “the straight is judge of itself and of the bent,” On the Soul 1.5.411a4-6; and therefore, from the justice (determined in the other preceding article [nn.102-157]) in the transfers of ownership or of the use of things, the injustice that happens in such things is made apparent.

159. This can be briefly explained by running through them:

For, in the case of giving, there is no justice if the giver does not give purely freely, or gives against the will of someone on whom he depends in giving, as is plain in the case that is alleged there [n.115, and reference]. And he does not give purely freely if he is deceived, or if he gives when dragged, as it were, or compelled by necessity; because ignorance and any sort of compulsion exclude the simply voluntary, Ethics 3.1.1109b35-1110a18. From this follows that one who, as to the reason because of which he gives, is deceived about him to whom he gives, simply does not give; and therefore, if he gives to someone as to a neighbor, who, however, is not a neighbor, he does not simply give; likewise, if he gives to someone as to one in need who is not in need. And so, let them look at every case, namely those who, as being rich, nevertheless receive alms as if they were needy, lest they are receiving everything of this sort unjustly; because voluntariness is not in the giver there, on account of his ignorance of the condition that he is having to regard to in his giving. Likewise, if he is dragged in, as in giving usury, there is no purely free giving.

160. Likewise must it be said about accommodation, although the defect there is not, because of equal vice, equal, because the transfer of use for a time does not require as much liberality as the transfer of ownership.

161. About permutation (barter) there is injustice from the same causes, namely from deception, from what is voluntary, and from prohibition by a superior to whom the one exchanging is subject in his exchanging. And from this can the exchanging that goes on in games of dice and the like be called unjust, according to Justinian Digest XI ch.5 n.4, Gregory IX, Decretals III tit.1 ch.15, Gloss on the Decretals III ibid.“Clerics are prohibited here not only from playing but even from being present at games, so much so that he who is publicly a player of dice is rejected for promotion; and they should not be inspectors of such sort of games.” ²⁸ However this law only binds those who are politically subject to imperial law, who perhaps are none today, because where precisely this law was wont to be in place, town laws take precedence over imperial ones (it is plain in Italy).

162. Injustices in buying and selling were touched on before [nn.129-132], when touching on injustice in their case; and next to these, about leasing and renting out [n.119] the matter is plain. About the giving and paying of loans the chief injustice is usury, the censuring of which is contained in Gregory IX, Decretals V tit. 19 ch.4.

163. The crime of usury is detested in the pages of both Testaments; in the Old it is plain from Ezekiel 18.8-9, “You will not accommodate yourself to usury     etc .,” and in the New from Luke 6.35, “Lend without expecting anything in return.”

164. And if argument is made against this that it is licit for anyone to keep himself from loss in contracts, as was said before [nn.129-132], because the seller can sell for a dearer price, paying attention to his loss in selling, especially if he be induced by the one to whom he sells; therefore     , in the same way, if he be induced by the one to whom he lends, it is licit for him to keep himself from loss, which he cannot do save by receiving something beyond the principal -

165. Similarly, he who gives usury gives it voluntarily, because no one compels him to accept a loan at usury, but by his own will he takes the money and returns more than the principal; and not otherwise can ownership be transferred to another; therefore he transfers ownership; therefore the other, namely the usurer, does not have what is another’s -

166. To the first [n.164] I say that if he does not want to suffer loss, he should keep back the money that is necessary for himself, because no one is compelling him to show mercy to his neighbor; but if he wants to show mercy, he is compelled by the Divine Law not to vitiate the mercy.

To the second [n.165]: although he transfer ownership, yet the receiver is bound to make restoration; just as, in the giving of a loan, ownership is transferred and use, and yet the debtor is bound eventually to restore it to the creditor.

167. Similarly the point is plain about injustice in exchanges, where a delay happens in the receiving; for there is injustice in the selling of time, or in making oneself certain of making a gain, either simply or for the most part.

168. There is injustice likewise when doing business, if one’s act is a hindrance to the republic, or if one receives from the republic immoderately beyond one’s industry, diligence, worry, and perils.

169. Again, besides these partial injustices in these contracts or exchanges, there is a general injustice when someone takes another’s property against the will simply of the owner - and this both as to the proximate owner and the remote owner, namely the legislator, who does not wish, indeed prohibits, seizing the thing without the owner’s will, save in cases of prescription or long established use. But in the following cases there is no transfer of ownership, namely in theft, rapine, and the like, although there is violent seizure of something of which there is an owner; and this injustice is more manifest than any other one where injustice in the transfer or exchange is only because of a defective condition, as in the cases above stated.

D. How the Holder of Another’s Property is Obligated to Restitution

170. About the fourth article [n.78]: first, for what reason restitution must be made; second, who is bound to make restitution; third, what; fourth, to whom; fifth: when.The order of topics in this fourth article by Scotus follows the order of circumstances given in Aristotle’s Ethics 3.2.1111a3-6. ²⁹

171. [About the first] - About the first I say that just as to take away what is another’s is a mortal sin against a negative precept of God, “Thou shalt not steal” [Exodus 20.15], so also to hold on to what is another’s. And therefore, just as it is necessary to hold to and keep the negative precepts, so it is necessary not to hold on to what is another’s when the owner is unwilling, and consequently it is necessary either at once to give it back in actuality or at any rate to want to give it back when the opportunity will have arisen.

172. Hence restitution is not necessarily to be made as some part of satisfaction, either when taking satisfaction generally or when taking it specifically.

For, taken generally, satisfaction renders to him against whom one sinned the equivalent of the sin. The restitution here is not so, because a return to a neighbor of that which is his own could be made without any return for sin, just as in loans too a return is made to the creditor without any satisfaction pertaining to reconciliation of a sinner.

Similarly, there is no specific satisfaction (which is the third part of penitence [d.16 n.26]), because restitution is by congruity required before every part of penitence, just as is voluntary cessation, actually or in fact, from sin. But the satisfaction that is the third part of penitence is not required before the other two parts of penitence, indeed it follows the contrition and confession as enjoined by a priest.

173. Restitution, however, is not enjoined by a priest but by Divine Law. And the like holds of other sins: if someone were to keep a fornicatrix, or rather an adulteress, restoring her to her husband is only to cease from one’s sin or from the transgression of this precept, “Thou shalt not commit adultery,” Exodus 20.14; and this precedes every part of an accepted penitence. And therefore, just as he who keeps an adulteress is not capable of penitence but is a mocker and therefore, when he comes to penitence, he adds sin to sin, so he who keeps back another’s property in both will and fact is not, while he is such, capable of any part of penitence.

174. [About the second] - About the second [n.170], ‘who is bound to make restitution’, there are two verses:

Command, advice, consent, recourse, coaxing

Partake, silent, not stop, not revealingThese verses were offered by jurists to aid memory about who is under obligation to make restitution. They are cited by many scholastics, as Albert the Great, Thomas Aquinas, Richard of Middleton, among others. ³⁰

The assertion of these rests on this maxim: ‘whoever takes away or detains what is another’s is bound to restore it’.

175. Now, one can take away as superior cause, namely by prescribing; or as proximate cause, by directly taking away; or as aiding cause, if one is an ally in taking away; or as inducing cause, if one counsels or favors or praises with the sort of advice, favor, or praise on account of which the taking away is done and would not be done without it.

176. Likewise as to the detainer: he who immediately detains, or by whose command a thing is detained, whether positively, or privatively, or interpretatively (as, namely, that he does not act to have it restored, although this belong to him of his office), or by offer of aid or favor (as if he is silent when asked in court, where restitution could be made to its owner by judicial sentence, and yet no danger, by his speaking the truth, threatens status or person).

177. Hence, in brief, all obligation for restitution is reduced to taking away or detaining - and this whether as principal or as proximate cause, whether aiding or inducing or not preventing, when preventing would be for the good of the republic and without danger to the person prevented.

178. And all these things, because they are reduced to effective consent, true or interpretative, are proved through Gratian, Decretum p.2 cause 2 q.1 ch.10, where it is said that “equal penalty restrains him who does and him who consents;” and this is taken from the statement of Paul, Romans 1.32, “Not only those who do such things, but those too who consent to those who do them.”

179. Each of all these is bound to restitution in full; but when one of them restores, all others are freed of the debt as regards him who suffered the loss; but the others are bound, pro rata, to the portion that joins them to him who made satisfaction for them all.

180. [About the third] - About the third, ‘what [restitution, n.170]’, I say he is bound not only for restoring the thing taken away or the use of the thing, but also for the interest or fruit received from it (if the thing was fruit-bearing), but not the fruit that comes from the industry of him who uses the thing.

181. From this it follows that the usurer is not bound to restore the gain sought from money borrowed at usury, otherwise he who received it could be a usurer justly, for to receive the fruit of one’s money that comes from the industry of another is to make usury.Here one must understand the usurer to be the one who borrowed the money at usury, not the one who lent it. A borrower is, of course, bound to return the borrowed money to the lender, but not to return the gain he makes from it. If he were bound in justice to return the gain as well, the lender would justly get that gain and so justly get the profit of the other’s labor, which is usury. The problem now, as Scotus immediately remarks, is that if borrowers are only bound to restore the amount borrowed and not any gain they make from using it, then men will be more induced to borrow money, because they will never have to pay back any gain they make from it. ³¹ And this perhaps is what would be able to induce men more to usury, for, in making profit from usury, they are not bound to restore the profit they make. On the contrary, it is the person’s own because acquired through his own industry - whether that of which he acquired it was also another’s or to be justly restored to another.

182. [About the fourth] - About the fourth, ‘to whom’ [n.170], I say to the one who underwent the loss, if however it be possible. I say ‘possible’, namely if he knows him or has, or can have him, in his presence (so that restitution may be sent to him without the sender suffering a disadvantage greater than what has to be sent), it would be useful for him to whom it is sent. And I mean this about him himself, or about some of those close to him (if he be dead or absent), because it is a presumption of the law of nature that he would prefer restitution to be made to those close to him.

183. And therefore in two cases is return not made either to him or to his: namely because to whom is not known, or suppose him known but dead, and those close to him are not known; in the other case, if greater expenses would have to be laid out in sending it than it is worth to him to whom it is sent.

184. If in these cases you ask, ‘to whom do I give it?’, I say that you give it to the poor in his stead, because let what cannot be returned to him temporally be returned to him spiritually; spiritual return at its greatest is done by returning it to the poor on his behalf.

185. If you ask by whose hands it should be returned to the poor, I reply: I have not found who is the necessarily designated mediator in distributing these things to the poor.

186. One doctor says [Richard of Middleton, Sent. IV d.15 princ. 5 q.4 ad 2] that it is one’s confessor, or someone in whose faithfulness one trusts.

187. It seems to me that it should be distributed to the poor by oneself, but with the counsel of some good man. For one could give the sort of mediator to make restitution whose faithfulness one might presume on, and yet he might apply it to other uses than he should. Hence, where the divine or ecclesiastical law does not bind a person, natural reason should be followed. But natural reason dictates that the person who is bound should restore it to the poor through himself rather than through another, though not by excluding but including the counsel of a good man.

188. [About the fifth] - About the fifth, ‘when’ [n.170, I say: it is not at any time licit to retain another’s property against the will of the owner, that is, when he does not will it and should according to right reason not will it. And consequently restitution must, as a rule, be made at once, just as at once must one cease from the act of any mortal sin, not only exterior but interior.

189. But sometimes in such cases it is licit to defer exterior restitution - however with interior restitution already in place, namely the will to restore when opportunity and opportune circumstances occur. But those cases are contained universally under this maxim: It is licit to detain another’s property when he, whose it is, should reasonably want it to be detained. But in certain cases anyone should rationally want this, namely his property to be detained by another in fact, when already in place is the will, along with opportune circumstances, to restore. For everyone should want restitution not to be made to him when restitution is to the prejudice of the community or of the recipient himself; because he ought to want his own good and the common good, and thus to want some sort of deferring of the restitution of a useful good, so that a greater good may be preserved. He should also not want restitution then to be made when it is to the prejudice and disrepute of the restorer, because he should more want the repute of his neighbor than the moderate advantage of his own, and this at once. Similarly, he should want what would avoid a great disadvantage to his neighbor restorer than the moderate or no advantage of his own in the moderate deferment of restitution.

190. From these points follows that when restitution would bring loss to the republic, or to him to whom it is made, or bring disrepute to the restorer or a notably too great loss, he is not bound to make restitution at once, but it suffices that in desire he restore it at once, and that he restore it in act when the inconveniences on this and that side cease.

191. If it is objected that restitution is an act of a negative precept, because it is not to retain another’s property, and to the observance of a negative precept everyone is bound always and at all times - I reply: to keep another’s property unjustly, that is, against the will of the owner, is always prohibited; and therefore always and at all times he ought not to keep it in this way; but when someone has the will to make restitution at an opportune time, from then on he is keeping it with the will of the owner, although not with the owner’s elicited act but with the act he should have, because the owner should want him who has what is the owner’s to keep it until he can opportunely return it.

192. But if you say that the owner here is unwilling, because he does not want his property to be kept for any length of time - I reply that when an owner wants in a bad and disordered way to have his property back at once, and consequently does not in ordered way want his neighbor to keep it, the one who is keeping it is not unjust, because a deposit too, about whose return the law is always most strict, can licitly be kept when the owner is with disordered will unwilling.

193. And to this term ‘when’ [n.188] can be reduced many other cases besides the aforesaid.

One special case (which can also be reduced to the term ‘who’ [n.170]) is when, of course, the taking away will have been secret. The one who took it away is not bound to betray himself, nor consequently to restore it himself directly, but through some other secret and faithful person; and it is expedient that it be through a confessor, because the crime is uncovered to him in confession, and his trustworthiness as to restoring what is committed to his trust should be credited enough. Therefore, restitution can here be deferred until the will of such a person and opportunity may be obtained.

194. There is also another case when making return can be deferred (which could also be reduced to the term ‘who’ [n.170]): for one is not bound for the time when one is incapable; however one is bound afterwards “when one will have reached a fatter fortune,” as is proved in Gregory IX, Decretals III tit.23 ch.3; as also is it noted in the gloss that the action does not expire through the want of the debtor, but sleeps - hence the remark [taken by the gloss from Justinian’s Digest IV ch.3 n.9], “Vain is the action which the want of the debtor excludes.” But the right to action remains against the debtor, just as does the obligation, though it does sleep.

II. To the Initial Arguments

195. To the initial arguments:

To the first [n.66] the answer is plain from the first part of the last article [nn.171-172], as to what the reason is that one is not bound to restitution as to satisfaction properly speaking (which is the third part of penitence [d.16 n.18]); but one is bound to restitution as to cessation from sin, and this in act and in effect, with the due and opportune circumstances.

196. To the second and third [nn.67-68] the answer is plain from what was said in the fourth article, that he who does not know is bound to make return to the poor [nn.184-185]. But as to what is said there about not knowing the owner of a thing that has been found [n.68], I say that a thing found should be handed over to a public person to look after, and proclamation should be made in public places so that the owner who has lost it can thus get hold of it. But if, after such proclamation no owner appear, one must do as one does about unfixed restitution [sc. give to the poor].

197. To the next [n.69], it is plain that a greater sum is not to be laid out in sending than what the thing sent is worth, but one must wait for the person to be present, if this may be credited to be the case at some point. But if it not be credited, and if a messenger not go between save at extreme expense, the thing is to be handed over to the parents and, if they not be there, it is to be given to the poor. For, universally, bestowing alms on the poor on someone’s behalf is to give him a spiritual good; and hereby, when a temporal good cannot be returned to him, does restitution to him become possible.

198. To the fifth [n.70], if the person holding another’s property is very necessary to the republic, and if he were in pressing necessity, and likewise the person to whom he was in debt, the argument would have some evidence on its side; but this matter will be spoken of at once in the response to the argument that follows [n.199]. But if that which is unjustly detained by a person very necessary for the republic is not necessary for him simply, but only for preserving his dignified status, I say that it is not licit for someone to hold a dignified status on the basis of another’s goods, and his dignified status (which he has through non-restitution) is not worth as much to the republic as his justice and fidelity and common justice.

199. To the sixth [n.71]: or the one detaining [the other’s property] is in extreme necessity and he whose is the property is not, but has something less than extreme necessity - and then I say that this property belongs to the detainer by the “right of heaven,Literally the ‘right of the pole [of the heavens]’, or ‘ius poli’, which was natural or divine right, and was distinguished from the ‘right of the forum’, or ‘ius fori’, which was civil or human right. The two together form a sort of jingle in Latin and are found as such in Augustine, Sermon 335, On the Life and Morals of his Clerics, “The bishop has it in his power not to make return, but iure fori not iure poli.” The phrase appears in Gratian, Decretum, e.g. p.2 cause 17 q.4 ch.42, and several other sources. ³² by which right a way to provide for the support of nature in a time of extreme necessity is conceded to everyone detained by the extreme necessity;” and it is today in Boniface VIII, Sixth Book of Decretals, V tit. 12 ch.3. But if both, namely detainer and he whose property is detained, are in extreme necessity, then if the owner comes to this necessity before the detainer does, the property must be returned to the owner by a double right: both because it is his first, and because it is now made his by this necessity. But if the detainer comes first to this extreme necessity, it is made his, and then it should not be returned to the owner who comes to this necessity afterwards, because his ownership over the thing has ceased, and has become the other’s by the ‘right of the pole’. But if both come together to extreme necessity, I say that it should be returned to the owner, because it never fell away from his ownership.

200. And if you argue that each should love himself more than his neighbor, and consequently love his own bodily life more than that of his neighbor, and consequently love to retain this thing, which is simply necessary for himself, more than to give it to his neighbor - I reply: one ought to love one’s own life in an ordered way more, as it is lovable for eternal life, and so ought to love the just conservation of one’s life more than the conservation of the life of one’s neighbor, but not the unjust conservation of one’s life more than the just conservation of the life of one’s neighbor. For thus should a thief undergo hanging more than kill the hangman so as to escape. The reason for this is that the love of bodily life unjustly kept is not an ordered love, because it is not for the love of one’s soul nor of God. Now, in the case last mentioned, this detainer’s protecting of his life by another’s property is unjust; and along with this it is also homicide, because he who takes from another the necessary thing owed to him unjustly kills him.

201. But surely if, after extreme necessity, the detainer in the first or second case come to a fuller fortune, is he not then bound to make return? It seems that he is, [n.194] because the detaining came from impossibility, as was mentioned above [n.194] from Gregory IX, Decretals.

202. On the contrary: the property was made to belong to the detainer by the fact he was in extreme necessity, and consequently it ceased to belong to the first owner.

203. It could be said that such a simply necessary thing could only be something pertaining to sustenance, and then it would be consumed, and justly, because the consumer was owner; however he is bound to return the equivalent afterwards, when he comes to a fuller fortune, because the obligation to an equivalence seems to have had its rise by reference to the first taking of the other’s property which, before the extreme necessity, was unjust; and therefore the obligation was not extinguished by the extreme necessity but slept. But if he never had taken it before the extreme necessity, then he would justly have taken it as his own, nor is he bound to any restitution.

204. To the other argument about the sword [n.72], the answer is plain from ‘when’ in the fifth argument of the fourth article [nn.190-192].

205. To the next about the adulteress, the answer is multiple:

In one way [Richard of Middleton, Sent. IV d.15 princ.5 q.4 ad 9], that she ought to reveal her fall or sin to her illegitimate son and induce him to let the inheritance go to the true heir, by reason of the fact he is unjustly holding it, because it is not his.

206. In another way is it said [Henry of Susa, Summa of the Titles of the Decretals V], and it is less strong, that she should reveal her fault to her husband so that he may assign the inheritance to the true heir, and this is licit according to imperial laws, after the testator has first instituted an heir in his testament.

207. Against the first response [n.205]: because either the son would believe his mother or he would not. If he believed her, it is not likely that he would for this reason let the inheritance go, because few are found so perfect that, for keeping justice in the forum of God, they would let great possessions go that they can hold by exterior right. Nor can even the mother presume this, unless she had much experience before of her son’s will; and she should not, because of uncertain correction of her son, expose herself to certain danger of dishonor with her son. But if her son not believe her, there would then be two evils, because she would be dishonored and he would hold the inheritance as before.

208. Against the second response [n.206] the argument is that the woman defames herself, and exposes herself to danger of death, and her husband to danger of wife-killing, because such a husband could be a zealot (as many are), who would kill her, or at least hold her in hatred, and would expel her from himself and from act of marriage. And to these evils of disgrace, of death, or of hatred at least or discord, which are very likely and seem they will for the most part happen, the woman should not expose herself for the uncertain good of restoring the inheritance. And in addition to this, in lands where the first born is universally the heir, the father, were he to believe his wife, could not take the inheritance from the illegitimate son unless he proved her such in a public forum, and then the woman would need to be defamed not only before her husband but before the whole country.

209. I say, therefore, that the woman should, as much as she can, work to get the inheritance returned to the true heir. I say, ‘to the extent it is in her’, because she should not expose herself to disgrace, but induce the illegitimate son, as far as she can, to let the inheritance go for other honest causes. One honest way is to enter religious life; another is to become a cleric and receive an ecclesiastical benefice and, being as it were content with these sufficiencies, let the inheritance go to the other brother as to the remaining layman.

210. But if by no honest persuasion can the mother sway the illegitimate son’s heart to let the inheritance go, it does not seem that she should betray herself to her illegitimate son, because she is not certain that such a son, being thus unpersuadable by her in other things that are honest, would be swayed because of this; rather perhaps he would hold on more tenaciously, conceiving his dismissal to be to his own disgrace, because he would thereby be known to be illegitimate, and those ill born take much care against such notoriety. And then should the mother in another way work for the inheritance to be made to the true heir - as much as she can and according to what corresponds to justice. Because I do not say that she is bound to restore the equivalent of the whole inheritance, for there is a great distance between ‘to have’ and ‘to be close’; but he, the true heir, never had the inheritance, though he was, according to justice, close to it. And therefore something less than the equivalent suffices him for restitution; and let that less be determined by the decision of a good man. However, it does seem that at least provision of honest sustenance and vesture is owed him, were the inheritance so full that it could suffice for the heir at double or triple that of his. But if this is not possible, the answer is as above [n.194].

211. Likewise to the last argument [n.74] I say that he is bound to restore the benefice, not in totality, because there is a great difference between ‘to have’ and ‘to be close’, but a portion corresponding to some part of the value of the benefice. And this if he directly took away the benefice from him with the intention of causing him loss; but if indirectly, namely by looking after it for himself and intending, together with this, to cause the other loss, and he did not otherwise sin, he is bound, as I said before. But if he only intended to provide for his own proper utility and thus look after it for himself and as a result another, contrary to his intention, suffers loss, he is not at all bound to him, because it is licit to provide for oneself to the neglect of another.

212. There is a confirmation of this in Justinian Digest XXXIX ch.3 [taken by Scotus word for word from Richard of Middleton, Sent.IV d.15 princ.5 q.4 ad 7]. If I cut off the streams on my farm, which water to another’s well flows through, with the intention of harming him, I am bound to him for restitution of the loss. But if I do this without deceit, intending to consult my own utility and necessity, as that it is useful for me to make a wall which cannot conveniently be built without cutting off those streams, I do not harm him, because I have the right to do what is for my own utility on my own farm. And the Digest says [ibid. ch.17 n.151], “No one causes loss save he who does what he does not have the right to do.” But this person has the right to care for his benefice, with just and honest circumstances preserved.