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All through the discussions on usury we find express recognition of the justice of the owner of money deriving an income from its employment; all that the teaching of usury was at pains to define was who the person was to whom money, which was the subject matter of a mutuum, belonged.
The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan.
Now he is repaid according to equality of justice if he is repaid as much as he lent, wherefore, if he exacts more for the usufruct of a thing which has no other use but the consumption of its substance, he exacts a price of something non-existent, and so his exaction is unjust. And in the next article the principle that mutuum is a sale appears equally clearly: 'Money cannot be sold for a greater sum than the amount lent, which has to be paid back.
Special words signify the begging of food, of uncooked food, of fish, of pigs, of pigs for travellers, of pigs for stock, of taro, of taro-tops, of taro-tops for planting, of tools, of flyhooks, of implements for netting pigeons, and of mats. It is true the beggar was supposed in time to make a return, somewhat as by the Roman contract of mutuum.
The Latin language very happily expresses the fundamental difference between the commodatum and the mutuum, which our poverty is reduced to confound under the vague and common appellation of a loan.
Hence it is by its very nature unlawful to take payment for the use of money lent, which payment is known as usury; and, just as a man is bound to restore other ill-gotten goods, so he is bound to restore the money which he has taken in usury. The essential thing to notice in this explanation is that the contract of mutuum is shown to be a sale.
'Regarded as an extrinsic title, risk of losing the principal is connected with the contract of mutuum, and entitles the lender to some compensation for running the risk of losing his capital in order to oblige a possibly insolvent debtor. The greater the danger of insolvency, the greater naturally would be the charge.
Special words signify the begging of food, of uncooked food, of fish, of pigs, of pigs for travellers, of pigs for stock, of taro, of taro-tops, of taro-tops for planting, of tools, of flyhooks, of implements for netting pigeons, and of mats. It is true the beggar was supposed in time to make a return, somewhat as by the Roman contract of mutuum.
Real contracts, or contracts concluded by delivery, are exemplified by loan for consumption, that is to say, loan of such things as are estimated by weight, number, or measure, for instance, wine, oil, corn, coined money, copper, silver, or gold: things in which we transfer our property on condition that the receiver shall transfer to us, at a future time, not the same things, but other things of the same kind and quality: and this contract is called mutuum, because thereby meum or mine becomes tuum or thine.
This dispute was decided in favour of the borrower on the ground that, according to the true nature of the contract of mutuum, the money was his property. It was, therefore, never doubted that even money might produce a profit for its owner.
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