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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.
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.
Before we discuss interest properly so called, we must say a word about another analogous but not identical title of compensation, namely, the poena conventionalis.
The important thing to remember is that these titles were really distinct. The essentials of a poena conventionalis were, stipulation from the first day of the loan, presumption of damage, and attachment to a loan which was itself gratuitous. The Summa Astesana clearly maintained the distinction between the two titles of compensation, as also did the Summa Angelica.
The question, however, was still hotly disputed at the end of the fifteenth century, and was finally settled in favour of the admission of the title as late as 1645. Other Cases in which more than the Loan could be repaid. We have now discussed the extrinsic titles poena conventionalis, damnum emergens, lucrum cessans, and periculum sortis.
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