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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.
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 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.
No; they admitted fully that one might de pecunia lucrari; but this lucrum does not come from the pecunia, but from the application of labour to the sum.
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.
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.
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 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.
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.
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.
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