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Cleary points out, the trader is held by this decision to be entitled to a recompense on account of a probable loss of profit, and the decision consequently amounts to a recognition of the title lucrum cessans. The title is also recognised by Scotus and Hostiensis. The attitude of Aquinas to the admission of lucrum cessans is obscure.
The justice of the poena conventionalis was recognised by Alexander of Hales, and by Duns Scotus, who gives a typical form of the stipulation as follows: 'I have need of my money for commerce, but shall lend it to you till a certain day on the condition that, if you do not repay it on that day, you shall pay me afterwards a certain sum in addition, since I shall suffer much injury through your delay. The poena conventionalis must not be confused with either of the titles damnum emergens or lucrum cessans, which we are about to discuss; it was distinguished from the former by being based upon a presumed injury, whereas the injury in damnum emergens must be proved; and for the latter because the damage must be presumed to have occurred after the expiration of the loan period, whereas in lucrum cessans the damage was presumed to have occurred during the currency of the loan period.
In the second place, the lenders were almost invariably members of the trading community, who were the very people in whose favour a recompense for lucrum cessans would be allowed.
Closely allied to the title of damnum emergens was that of lucrum cessans. According to some writers, the latter was the only true interest. Dr. Cleary quotes some thirteenth-century documents in which a clear distinction is made between damnum and interesse; and it seems to have been the common custom in Germany at a later date to distinguish between interesse and schaden.
The recognition of the title lucrum cessans as a ground for remuneration clearly implies the recognition of the legitimacy of the owner of money deriving a profit from its use; and the slowness of the scholastics to admit this title was precisely because of the rarity of opportunities for so employing money in the earlier Middle Ages.
The first thing to be noted on passing from the poena conventionalis to interest proper is that the latter ground of compensation was generally divided into two kinds, damnum emergens and lucrum cessans.
The probability of there being a lucrum cessans was thought small, but the justice of its reward, if it did in fact exist, was admitted. This interpretation steadily gained ground amongst succeeding writers; so that, in spite of some lingering opposition, the justice of the title lucrum cessans was practically universally admitted by the theologians of the fifteenth century.
Although the division between these two titles was very indefinite, they did not meet recognition with equal readiness; the title damnum emergens was universally admitted by all authorities; while that of lucrum cessans was but gradually admitted, and hedged round with many limitations.
Of course the amount paid in respect of lucrum cessans must be reasonable in regard to the loss of opportunity actually experienced; 'Lenders, says Buridan, 'must not take by way of lucrum cessans more than they would have actually made by commerce or in exchange'; and Ambrosius de Vignate explains that compensation must only be made for 'the time and just interesse of the lost gain, which must be certain and proximate.
The first clear recognition of the title lucrum cessans occurs in a letter from Alexander III., written in 1176, and addressed to the Archbishop of Genoa: 'You tell us that it often happens in your city that people buy pepper and cinnamon and other wares, at the time worth not more than five pounds, promising those from whom they received them six pounds at an appointed time.
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