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Italy who spread through Europe. (146) Later on, the State in the Low Countries and Italy set up public pawnshops which charged lower interest in an effort to supplant Lombards and Jews. Although social opinion was probably directed largely against these manifest usurers, the moral code was also opposed to commercial credit if it involved profit from loans. It was this wider prohibition which directly affected the development of trade and banking and the structure of commercial loans and interest rates. INTEREST AS DISTINCT FROM USURY In the doctrinal discussion up to this point, the term interest has not been emphasized. The prohibition was against usury, where more is asked than is given. The Latin noun usura means the use of anything, in this case the use of borrowed capital; hence, usury was the price paid for the use of money. The Latin verb intereo means to be lost ; a substantive form interisse developed into the modern term interest. Interest was not profit but loss. It was from exceptions to the canon law against usury that the medieval theory of interest slowly developed. Compensation for loans was not licit if it was a gain to the lender, but became licit if the compensation was not a net gain, but rather a reimbursement for loss or expense. The doctrine of intention was overriding. The scholastic analysis of usury came to center on the distinction between usury and interest. (147) Interest was considered the compensation due to a creditor because of a loss which he had incurred through lending. (148) The concept derived from Roman law, where it was considered the difference between the lender s or other injured party s present position and that in which he would have stood if he had not loaned. It was damages in the broad sense of sometimes including the profit that the lender might have made with the money loaned. The term interesse in this sense became standard about 1220. It was often a compensation or penalty for delayed repayment of a loan. Such damages might arise (a) when guarantors of a loan were forced to borrow to make good and thus to pay usury; they could recapture the usury as damages; (b) when a loan was not repayed at the agreed time, and a penalty for delay might be charged, provided that the lender would prefer repayment to the delay plus interest. In the latter case penalties sometimes ran to double the sum lent. (149) Much of the profits of the Belgian Lombards were from these penalties. But there was an ecclesiastical tendency to limit the penalties to actual damages suffered. St. Thomas Aquinas declared that a debtor in delay may be held to repay probable lost profits on the money borrowed. (150) In early cases loans were supposed to be interest-free from the beginning, acts of charity which, however, incurred a penalty, that is, interest,
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if not repaid promptly. But soon interest as a penalty was by some, and in certain circumstances, permitted from the beginning of a loan. One such case was as compensation for time and effort in making loans, a sort of wage. Another was when the money could clearly have been used profitably if not loaned, and still another was when loss was incurred by the lender, say in selling property, in order to raise the money to lend. Again, in the case of the census (annuity secured by property) discussed below, interest from the start was allowed if it was no greater than the gain from investing the money in the outright purchase of the property. Finally, interest on a forced loan by a state was by some considered licit as damages as long as the loanholder would rather have his principal back than receive the interest. (151) Risk was generally not considered a legal ground for accepting interest or profit on a loan. Perhaps this was because loans were usually secured by property worth many times the principal of the loan. STATE LOANS Forced loans were levied on wealthy citizens by Venice, Florence, and Genoa from a very early date. The controversy on the legality of their interest payments was keen. In a sense these loans were a form of tax. The taxpayer, however, got a claim to interest as a return on his payment. These loans were assessed by the rich against the rich in proportion to their known wealth. In Venice such forced loans, usually for defense, were organized in the form of a government fund called a mons. Every lender received a share in the mons and these shares became the object of trade. (152) Daily Bourse prices were eventually quoted. There was no obligatory redemption date, but the State generally retained the right of redemption. Annual payments were made as gift and interest. These were defended against usury laws on the ground that the interest was so low that no one would voluntarily make the loan. By 1400 most Scholastics had agreed that increments on public loans were interest, that is, compensation for damages, not usury. PARTNERSHIPS AND ASSOCIATIONS The societas, or partnership, was a normal and recognized form of commercial organization from Roman times. (153) Its profit objective was recognized and approved as an earned reward for effort and risk. Only where partnership agreements tended to limit or eliminate the work and risk of one partner were payments to him challenged as usury. The usury prohibition was not intended to curb the high profits of risk enterprise. Later, in Renaissance times, special partnerships were permitted under
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