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10 Exchanging by safekeeping.


To exchange by safekeeping is licit ... 36

When something may be taken for it ... 37

The exchanger receives and pays in cash and with treasury notes. (1) Can he receive something more for paying in cash? ... 37

Paying five per thousand for cash is illicit, except in three cases ... 37, 38

It is better to earn a small amount justly than to earn a big amount and to commit a sin ... 39

The person who does not pay the exchanger or [the person] who takes him cash and leaves [this cash] with him, sins [as well as the exchanger] ... 40

36. The sixth type of exchange, by safekeeping, is also just because there is a law, (2) custom, or statute that makes the exchanger a safekeeper, depositary, and guarantor of the money that is given to him or exchanged for something needed by those who give it or send it. This makes him [i.e., the exchanger] pay the merchants or the people that the depositors choose in a particular way, and, because of this, it is licit that they take a just salary from the republic or from the depositing parties. Because this profession and work is useful to the republic and does not possess any iniquity whatsoever, it is just that someone who works earn his wage. (3)

This exchanger's occupation is to receive the money from the merchants; to deposit it; to have it ready; and also to write, keep the books, give an account of the money to everyone with great difficulty, and to run the risk of making a mistake with the accounts and other things. The same thing could be carried out with a contract (4) by which one of the parties commits himself to some people to receive and keep money under deposit, giving, paying, and keeping the books with the people according to the way they tell him to because this is the kind of contract where the activity and work of one is rented out to someone else. Such a contract is specifically provided for by the law and is just and holy. (5)

What the salary should be for this type of work has not been resolved by law. It is worth noting that the exchanger has two ways of taking money: in cash by actually taking the money, and in treasury notes by accepting documents of other exchanges or from other people with which they promise or deposit in his bank the payment of what they remit to him so that he forwards it to his account. There are also two ways in which the exchanger pays: by actually giving the money, or in treasury notes by forwarding the payment to other exchanges.

37. Some (6) believe that it is ordered and established in this kingdom that when the exchanger pays someone in cash, he should receive five per every thousand, and when [he pays] with a document, remitting to another exchange, he should receive nothing. We have found quite the opposite in the laws (7) of these kingdoms. In one (8) of them, it says that the Catholic Sovereigns ordered, in Seville in the year 1491, that the exchanger could pay those who had treasury notes and others with coins that are defective, broken, and crushed, paying for the defective ones. If someone were to fancy his payment in sound, healthy, and chosen coins, [the exchanger] would be able to take five per every thousand for paying it thus, and not any more, even if the other party wanted to give more.

In another [law], (9) it says that the Catholic Sovereigns themselves found out that the exchangers took advantage of such a law to not only take for themselves those five per every thousand in those situations but also in all those cases where cash was paid in any coin, whether it was chosen or not. They reviewed that law in 1513, invalidating what pertained to this [issue] and establishing that the exchangers not pay in broken or crushed money nor take anything for themselves from those to whom something was deposited in their accounts or who owed them money, under great penalties. This provision was very holy and necessary.

38. It is against all natural, divine, and human reason (10) that you take from me and others one, five, or ten per thousand of what our debtors or others have deposited for us in your bank or exchange, without doing anything else for us than paying what was deposited in [your bank]. It is not just (11) that we pay for the work you put into taking care of the money from our debtors or from those who deposited with you in our favor or in keeping their accounts. Even if some say there is great effort that deserves the said five per thousand, I do not believe so because it would be unjust unless it is one of the three cases that we will discuss later.

Consequently, not only are the said five per thousand (when cash is paid) not his salary, but they become his theft and unjust extortion, which drive him to hell or restitution and a complete contrition to deliver himself (12) from [these sins], except in three cases. The first is when the payment goes to the same people who deposited and gave their money in cash for the exchange, and they pay thus to get a discount on the work and care that the exchanger has in receiving and taking care of their money and do it for the above-mentioned [persons]. The second is when the depositors sold their merchandise for a higher price that depended on the higher amount they had to pay for receiving the exchange in cash for the discount and discharge of what the depositors owe the exchanger. The third is when, by their own free will, those who receive the payment give it to exchange it [for cash] so that they do not have to wait for the payment eight or ten days until [the payments are due] in order to transfer the payment to the exchanger so that they do not have to leave anything for cashing in, as it has happened to us. Those [who receive the payment and give it to exchange] are very few because [the payment is not theirs yet] even if [the depositors] have left it [in deposit]. Their will to do this is as unnatural as the will of the one who pays usuries to the usurer, which does not excuse from sin or restitution. (13)

39. Others say that their salary is 2, 3, or 4 percent, according to whether the money belonging to the lenders is more or less expensive or whether they give in cash to some and to others until the next fair. All of this is usury and mortal sin, with the obligation of restitution, and cannot be denied in any way. (14)

That is why we say that the salary is what each dealer gives or should give according to each virtuous man's (15) free will in each fair, once the accounting has been finished according to what is given for it until such conclusion, which is something that is not determined. They tell us that some give them one or one and a half per thousand apart from what they get for exchanging coins.

If you say that today (when there are no gold pieces to barter) the second is little or nothing and the first is little to make so many rich, so quickly, and in such a big measure, we will answer that (according to what they say) they have been a great part of the cause. There are no gold pieces in the kingdom, nor are they bartered, because of their having taken the money out by means of much skill and dexterity, although I believe that there has been a greater cause. We also say that the exchanges were not invented to enrich the exchanger but to make deals more useful and easier so that there is more merchandise and it is cheaper, which would be the case if they carried out their job honestly and would content themselves with a just salary. This just salary would be the result of receiving it from those who owe it to them, whose money they hold and whose accounts they keep and not from those who do not owe it to them, remembering what that great King and prophet said: (16) "It is better to gain little with justice, than many riches with sin." Also remembering what the author of the prophets said: (17) "What is the use of gaining the whole world, and losing the soul for it?" and not wanting [against the Psalm's (18) precept] to imitate the evil ones who gained their riches illicitly.

40. Regarding this type of exchange, not only do the exchangers sin and have to pay restitution but also those who give them money to keep and do what we saw earlier and then do not want to pay anything, saying that what [the exchangers] earn with their money and receive from those who pay in cash is enough as salary. Then if the exchangers ask for something, they leave them and go deal with someone else, and so, in order to avoid this, they [the exchangers] decide not to take a salary owed to them but take it from someone who does not owe it to them.

Those who sin, too, are the ones who give the exchangers some money in cash and then if they take it in treasury notes for themselves or for others and not in cash when the accounts are done with, they make [the exchangers] offer the payment for having given to them in cash, which is at least at 2 percent. This profit they cannot take for anything in the world as something owed to them, but for the advantage the exchanger takes or will take from that money that he was paid in cash. Thus it is clear usury because the exchanger who takes money works in order to receive it, store it, keep accounts, and have it ready for when it is needed or deposited, and the one who gave it or gives it does none of these things.

The exchangers commit another kind of usury regarding this matter when they receive money in cash in their hands, bank, or operating table from a merchant and immediately deposit an additional sum of money in another bank for whatever he wants for as long as they keep his money and for as long as [the merchant] leaves with [the exchangers] the revenue that they would have had to pay because of the cash payment. All this, at least in its intentions, is evident usury because the dealer leaves the revenue to the exchangers that he thinks he has earned for the cash payment, so that the exchangers lend him by way of deposit another amount, or a sum until the next fairs, and the exchangers lend it so that they do not [have to] pay that which they owe the depositor. All this is great misfortune and should be grieved for.

(1) Tr. note: In the original, "libranzas."

(2) Lex Argentarius, s. I [Digesto 2, 13, 10, 10, I] and Lex Quaesdam, s. Nummularios, ff. de edendo [Digesto 2, 13, 9, 2].

(3) Dignus enim est operarius mercede sua, Lc. 10, 7, et c. I, 13, quaest. 3 [Decreto 2, 13, I, 11].

(4) Quia per pactum fieri potest id quod per legem fit: lex Non impossibile, ff. de pactis [Digesto 2, 14, 50], C. Contractus, cum glossa, de regulis iuris lib. 6 [Digesto 50, 17, 23].

(5) Est enim contractus locationis ex parte campsoris, et conductionis ex parte aliorum, certa mercede constituta, lex I et 2, ff. Locati, s. r. Instit. de locatione [Digesto 19, 2, I, et 2; Institut. 3, 15, I].

(6) Sotus: De iustitia et iure, lib. 7, quaest. 4, art. I [lib. 6, quaest. II, art. I, 590].

(7) Tr. note: In the original: "pragmaticas."

(8) Pragmatica, 127.

(9) Pragmatica, 129.

(10) Regula: Non debet aliquis alterius odio, praegravari, De regulis iuris, li. 6; I quaest. 4 per totam causam [Decreto 2, I, 4]; c. Si habes, 24 quaest. 3 [Decreto 2, 24, 3, I].

(11) Argumentum: C. ne filius pro patre [Cod. 4, 13], Ne uxor pro marito [Cod. 4, 12], per totum.

(12) C. Peccatum, de regulis iuris, lib. 6, cum his quae diximus in manuali, c. 17, n. 63 et 64 [p. 207 et 203].

(13) C. Quia in omnibus, de usuris [Decretales 5, 19, 3], c. I. Eodem titulo li. 6.

(14) Per canon I, 14, quaest. 3 [Decreto II, 14, 3, I], et definitionem usuarae ac alia quae ibidem posuimus [N. 3, p. 6]; immo est pessimum genus usurarum [ut dicit] Hostiensis in Summa, de usuris, s. An aliquo, sub finem.

(15) Quoniam eius arbitrio sunt determinanda, quae iure reliquuntur confusa lex I, ff. De iure deliberandi [Digesto 28, 8, I].

(16) Psalmo 36 [16]: Melius est modicum iusto super divitias peccatorum multas.

(17) Mathaeus 16 [26]: Quid prodest homini, si universum mundum lucretur, animae vero suae detrimentum patiatur?

(18) Psalmo 36 [I], Noli aemulari in malignantibus, et cetera.
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Article Details
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Title Annotation:Commentary on the Resolution of Money
Author:Emery, Jeannine
Publication:Journal of Markets & Morality
Article Type:Report
Geographic Code:1USA
Date:Mar 22, 2004
Previous Article:9 Exchanging for an interest.
Next Article:11 Exchange by buying, bartering, or innominate Contract.

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