# Lehre und Wehre_St. Louis Missouri_September 1864_S259
# AI translation — CHI Digital Archive (demonstration)

Martin Chemnitz on Usury. 259

should take place: 1. It concerns only persons carrying on business. For
without doubt it is a loss when the course of business is hindered. 2.
The gain must actually, or in some real sense actually, be lost. For
although a possible gain is likewise lost to a creditor, that is still
not an interest of gain foregone, because no one loses what he never
had. Hence one called it an emerging loss and a ceasing gain (dammum
emergens et lucrum cessans), to indicate an actual loss, not one that
could merely occur. 3. If someone, under cover of this interest, does
not lend to the needy, or offers himself for lending, it is to be
presumed that by his lending he seeks more gain without labor and risk
than a true interest. 4. Such an interest may not be assessed by
creditors, but by the arbitral judgment of the authorities or of
conscientious men.

The question is also raised: if a debtor, who, without any contractual
stipulation of anything, has received a loan free of charge, has made a
gain by means of another's money, and out of gratitude wished
voluntarily to repay something above the capital, whether he does right,
and whether the creditor may accept this with a good conscience. What is
to be answered here is shown by considering what has been laid down as
the foundation. For just as interest is judged with respect to the
creditor, so the so-called obligation of requital is judged with respect
to the debtor. For if the debtor has gained much through the use of the
borrowed money, or has escaped some great loss, he is without doubt
bound to requital by the duty of gratitude and by the owed mutuality of
love. For it is rightly said: In respect of services of love we are
obligated in the first place to those from whom we have received
benefits. Nor does the creditor sin who accepts what is offered, because
services of gratitude and usury are different things. But here a
glossing-over of usury is easily sought under what is called in German
"Trinkgeld" (a gratuity). For if a contract or the intention precedes,
such that one would otherwise not have lent unless one were to receive
something above the capital as a gift of thanks, then that is truly
usury, whatever one may call it.

For a long time there has also been dispute concerning sea-passage or
skipper's usury, namely when the creditor, contrary to the nature of
lending, takes upon himself the risk of the capital. The laws say that
the insuring of risk may be regarded as done for money. Further: where
there is risk, there gain also ought to be set against it