Usura non est lucrum, sed merces
But be this as it may, in the course of the 16th century it became apparent that the canonical prohibition on usury was no longer tenable in iure civili. The main attack came in the wake ot the Reformation:117 from Calvin m regard to its theological justification, from Carolus Molinaeus118 and Claudius Salmasius117 as far as its legal and economic basis was concerned.
The words of the Lord in Luke 6, 35 had been misunderstood according to Molinaeus; they did not refer to contracts of loan, but merely to alms. Thus, money that had been given with a charitable intention must never be reclaimed with interest. A loan given per modum negociationis, on the other hand, was valid, as long as only a moderate amount of interest and not turpes usurae had been promised. The Roman rules relating to usury, not being in conflict with Divine law, could therefore still be applied. Salmasius, on the other hand, set about attacking the "sterility o( money" doctrine. He regarded the granting of a loan as the hire of the money involved, the interest consequently as the rent to be paid for its use: "Locatur pecunia, quae foenori1-" datur, non alio modo, quam aedes aut ager aut opera, pro quibus merces cxigitur ab his, qui ea conduxerunt.1,121 Consequence:■ '... usura non est proprie lucrum, sed merces. Nee propter officium mutuationis accipitur, st'd propter usum pecuniae. Aliud autem est merces, aliud lucrum. Hoc adventiciuin est. et extra rem. 1 Ila profecticia ex ipsa re."
By the time the imperial legislation, in 1654,122 for the first time acknowledged the possibility of charging usurae in principle, loans at interest had already become very common in practice.[905] The canonical prohibition came to be regarded as abrogated by general custom.[906] [907] At the same time there was a general move back to the Roman rules relating to interest, modified in many places only in that the maximum rate for ordinary loans was reduced from 6 % to 5 %, either by way of legislation or by customary recognition.123 In the Catholic countries (Spain, France and Italy), on the other hand, the canonical prohibition continued to be maintained in principle. In 18th-century French literature it still found support in the influential writings of Domat[908] [909] [910] and Pothier.'2712«
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