There is a contract in frequent use in Europe which may be made privately or publicly. Privately, by the decision of each person, it is made when someone exposes a horse or something similar, at a fixed price, for casting lots as to whom it will fall, for example at fifty gold coins, and then several people contribute their share toward this sum and throw dice to decide who is to have the horse. Or privately several rings, books, mirrors, or other pieces of furniture are proposed to be distributed in the same way among friends, after contributions have been gathered, which are called lota. Commonly they call it la reffe or riffe. Some call it the game of the pot, I think because of the urn or pot into which the lots are cast.
When it is instituted publicly, however, the consent of the prince or commonwealth is needed. In this contract, whether it is made publicly or privately, many things must be considered so that the justice of the contract and its undamaged perfection may remain.
The first conclusion is that this contract is lawful. Briardus proves this well. That it is lawful is clear because it is prohibited by no law: natural, divine, or human. It is not prohibited by natural law, because it can be celebrated in such a way that no injustice intervenes in it, if the conditions soon to be stated are observed. Second, because it can lead to public utility. Third, because in itself it is nothing other than a certain divisory lot instituted by the good pleasure of those who agree, or those who cast lots together. That it is not prohibited by divine law is proved because it is prohibited neither by Sacred Scripture nor by any tradition of the Church. That it is not prohibited by human law is proved because no civil or canon law is brought forward which has expressly treated this contract.
[margin: Briardus, book 5, on the lawfulness of the lottery contract]
Conrad is mistaken when he thinks it is prohibited by the laws that forbid gambling with dice. First, this cannot be said of the public lottery, in which dice are not thrown. As for the private riffe in which dice enter, although under the law of Castile it is prohibited by new law, neither is it prohibited by the said laws that deal with the prohibition of dice. I prove this because the dice game is prohibited not because fortune rules in it, but because losers in dice games are accustomed to blaspheme, and because men are accustomed in this way to consume all their wealth in a short time and be impoverished, as is clear from the very rescripts of law. For if that prohibition were founded on fortune, it would certainly never be lawful to play dice, even for a small sum. It would then be forbidden because it is evil in itself. But now we see that the laws permit a dice game for a modest thing or for the sake of a banquet, and the opinion more consonant with reason and law is that this prohibition pertains only to those accustomed to play, or to frequenters of dice games, or to those serving dice games. Therefore dice should be judged not prohibited because they are evil in themselves, but made evil because and insofar as they are prohibited; and they are prohibited because of the twofold danger of blasphemy and bankruptcy. Since neither danger exists in this contract of the riffe, I would believe, as Briardus defends the later kind of lot cast into an urn by reason of likeness, that in the same way the former kind by dice must be defended. Besides, the things that suffice for the justice of one suffice for the justice of the other; and just as profit made in one can lawfully be retained, so also it will be lawful in the other.
[margin: Conrad Wimpina, On Contracts, tractate 2, question 71, on the lottery contract; Castilian new law against private dice-riffa; Roman-law dice prohibitions and exceptions for modest play or a banquet, including the final law in the Code, De religiosis et sumptibus funerum, and the Digest, De aleatoribus; Paludanus, book 4, distinction 15, question 3, article 5; Sylvester under Ludus, section 4, Convivio; Angelus and Briardus on the same issue; gloss on chapter Episcopus, word Deserviens, 35 distinction, on those serving dice games]
It must be noted, however, that in this contract two contracts are virtually mixed. The first is with respect to the one who puts forward the jewel or furnishing, and is a certain true but implicit sale, by which, for a certain sum of money, he sells that thing to all those who together make up the sum. For example, he sells a horse for fifty gold coins to five persons casting lots, each of whom contributes ten gold coins. The second is with respect to the buyers among themselves. Thus it is a certain contract of divisory lot, for they are judged to agree among themselves that the person to whom the lot favors shall have the whole horse for his ten gold coins, and the whole merchandise shall fall to him, while the others each bear the loss of his own contribution. Nothing else is required for the justice of each contract than that the whole sum together equal and not exceed the value of the merchandise, and that the buyers themselves be equally subjected to each fortune, that of gain and that of loss. Francisco Garcia proves that this is lawful, because in fact this contract comes to the same thing as if all those casting lots, having entered into partnership, bought together the thing or things to be exposed to lot. Then, if they wished, they could agree among themselves to cast a divisory lot as to which of those things would fall to each. No one has ever denied that this is lawful.
[margin: Francisco Garcia, On Contracts, book 3, tractate 2, chapter 20, on the lottery as implicit sale plus divisory-lot agreement]
The second conclusion is that the conditions to be considered for the justice of gain in this contract vary according to the persons present here. Francisco Garcia asserts and very well explains this, and Luis Lopez follows him without adding anything.
[margin: Francisco Garcia, On Contracts, book 3, tractate 2, chapter 20, and Luis Lopez, On Contracts, tractate 2, chapter 23, on conditions for just gain in lotteries]
They note five kinds of persons who can gain in this contract. First are the owners of the merchandise or sellers. It is lawful for them to receive for their merchandise only as much as they could gain by lawfully disposing of it in any other contract. That they can receive so much is proved because, with respect to them, a contract of sale intervenes with those casting lots, and a seller can attain as much as the goods can bring him by just profit, that is, as much as the goods themselves are worth. Therefore if the seller received more, that profit would be unjust, and he would be bound to restitution. Yet if the additional amount permitted to be contributed beyond the price of the merchandise did not fall to the owner or seller of the merchandise but to the poor or to officials, the excess would be lawful, as will be clear from what is to be said shortly. This exception usually occurs in public lotteries which are granted to cities or communities so that in this way they may free themselves from debt. Then the prince who grants the license, after considering the public need, usually sets the price of the lot somewhat more liberally, and no injury is done to those casting lots, since they know this.
[margin: Francisco Garcia, On Contracts, book 3, tractate 2, chapter 20, and Luis Lopez, On Contracts, tractate 2, chapter 23, on sellers, just price, restitution, excess contributions, and public lotteries for civic debt]
Fraud by sellers must be avoided: they must not delay making the drawing after sufficient contributions have been gathered; they must not change or diminish the goods; and when the drawing is to be made all together, they must not allow some goods to undergo the lot earlier. On this point it must be known that ordinarily a certain day is fixed when all lots are to be drawn together, with labor not interrupted by day or night. Sometimes, however, the drawing is instituted in this way: first, all the parts or the whole furnishing to be assigned by lot are proposed; the price of each lot is established, for example five stuivers; then the drawing is immediately made for each person who wishes to cast lots, in the order in which each pays. For example, I come and offer ten stuivers; two lots are immediately drawn for me. If another comes at once and brings fifteen stuivers, three lots are drawn for him, and whatever falls to me or him we carry off. This method is dangerous and ought not to be permitted by princes, because it is liable to many frauds. First, since the solemnities that are customary in the other kind do not intervene in drawing the lot, it is easier for some collusion to occur. Second, it cannot easily be established that the price is equal. If a fixed time is set, it can happen that not enough contributions have then been gathered; if open time is permitted, it can happen that the seller, exercising this lottery for too long, receives far beyond the price of the goods. Nor is it enough to say that it can also happen that he receives less, and so undergoes the common hazard. I answer that no danger of fortune ought to intervene here between buyer and seller, because with respect to them mutually it is a contract of sale. Rather, the contract of lot exists only among the buyers themselves. Finally, because goods which have fallen by lot are withdrawn in this way, the total merchandise always becomes less valuable, and therefore it is unjust for the same price of individual lots to continue. If you say that other goods equally good are always substituted for those removed, this is neither credible enough nor sufficient, since too long a license is thus allowed to the seller to exercise this contract. Therefore it is far safer and more secure, both for the commonwealth and for private persons, to abandon this second kind and to practice only the first.
[margin: Fraud by lottery sellers, fixed-time drawings, immediate drawings by stuivers, collusion, equal price, and diminishing merchandise]
Second, the buyers themselves, or those casting lots, can gain. It can happen that one who has contributed one drachma receives a thousand, for whatever the lot offers him without fraud he can carry off and retain. The reason is that all those casting lots have consented to this condition, that each should carry off what the lot has brought him; and so all are subject to equal danger. For one who gathers many shares can be frustrated in many, and can gain in many; one who gathers few can gain in few and make loss in few. Here collusion of those casting lots and of those who draw and read the lots must be avoided. If anyone obtains something through such collusion, both he and the colluders are bound to restore that thing, not to the former owner or seller of the lot, since he has already sold it, but to the fellow lot-casters who purchased the doubtful event. Therefore that thing must be sold and the price obtained from it be subjected again to lot among the partners of the lottery; or, if the thing still exists, the thing itself must be so subjected. Whether the fraudulent person is to be admitted in this new drawing, I am not certain. Certainly if he had not committed fraud, that lot would not have come to him, and it is fair that he bear the penalty of his sin. Yet because it could have happened that another lot equally good would have fallen to him, and no law deprives him of the repeated drawing, the matter is doubtful to me, and I would not dare exclude him.
[margin: Buyers’ gain, equal risk, collusion among lot-casters and drawers, restitution, and repeated drawing]
Third, the ministers and officials who assist at the drawing, whether in writing the tickets, drawing the lots, or seeing that no fraud or trickery is committed, lawfully receive some stipend for their labor. This is so provided that not more ministers of this kind are brought in than are necessary; that they do not bear a greater stipend than is fair; and that they do not draw out the matter longer than necessary. These things are true both with respect to the seller and with respect to the buyers, namely if they do not wish to contribute more than is fair, or do not wish the matter to be drawn out in this way, or do not wish so many ministers to be present. If they consent, I do not see why the consent of the buyers should operate less here, when the ministers are present at their expense, than the consent of the seller, when the expenses are to be paid by him. Garcia does not seem to me to have weighed this sufficiently when he thinks these exceptions do not have place only when the ministers are maintained by the seller.
[margin: Ministers and officials at lottery drawings; fair stipends, necessary labor, buyer consent, seller consent, and Garcia]
If you ask by whom they should ordinarily be maintained, since the profit of the lottery itself, that is, what happens by lot, belongs altogether to the buyers, and no part of this profit falls to the seller, and since the expenses of the ministers are made by reason of the lottery itself, that is, by reason of the second virtual contract, not by reason of the first, it follows that their expenses ought to belong to those among whom the profit itself is to be divided and among whom the second contract is celebrated. This is the common opinion. But Alcocer excepts one case: namely when the seller could not otherwise have sold those goods without expenses on brokers or retailers. Since he then avoids those expenses by the shortcut of the lottery, it seems fair that in place of them he should bear part of the lottery expenses. Nevertheless Garcia and Lopez contend that even in this case that common reason has place, because the lottery already no longer pertains to the seller. Yet Alcocer’s opinion, as I think, is more equitable, because that advantage which the seller receives really depends on and comes by the power of the lottery itself, and he would not have obtained it without the lottery. Thus, with respect to this business, the seller should not be considered devoid of advantage from the lottery.
[margin: Alcocer, On Gaming, chapter 49, on expenses otherwise owed to brokers or retailers; Garcia, On Contracts, book 3, tractate 2, chapter 20, and Lopez, On Contracts, tractate 2, chapter 23, on lottery expenses]
Moreover, in practice it has been received that the seller usually bears all these things and makes all the expenses, not only those made in establishing the valuation and value of the goods, but also those made in the lottery itself. Yet in the valuation of the lots themselves, for example in the total sum to which the number and value of the lots can reach, a probable account is made of all those expenses, and so the owners usually receive everything into themselves. Otherwise, if something should be deducted from the buyers because of this, then what Molina says has place: namely that it must be published from the beginning.
[margin: Molina, On Justice, part 2, disputation 502, on publishing deductions from buyers at the beginning]
Fifth, that quantity of money which was assigned by the prince for pious works or alms is lawfully deducted and received from the whole sum of the purchase price, whether it is deducted from the portion of the seller, that is, from the price, or from the profit that falls to those casting lots, or from both, especially if this is announced at the beginning. For the custom is pious and religious by which a prince or commonwealth, when granting such a license for a lottery contract, reserves some part in this way. He does not injure the contracting parties: not the seller, to whom he is not bound otherwise to give license; not the buyers, who subject their money to the lot under this condition. What has been said of a pious cause must also be held of public necessity; therefore something could be reserved to pay the debts of the prince or commonwealth, if such necessity truly existed. Therefore when the license is granted as a remedy to a city or community, the prince could reserve something for the needs of that city; in this way he could also set the total price more liberally. Garcia says this well.
[margin: Deduction for pious works, alms, public necessity, princely or civic debt, with Francisco Garcia in the same place]
Finally, the person to whom some merchandise has fallen because he contributed more shares than all others, or a certain number within so many days, can receive and retain that merchandise.
Understand this whenever he receives it, provided it is not a thing from the number of those already exposed to lottery. If it is from that number, he cannot receive it after some people have already contributed shares. For as soon as they contributed, a right to this merchandise was acquired by them. Thus it happens that the seller cannot assign to another what has already been sold to another. This reason sufficiently indicates that this must be understood when the promise is made after the lottery has already been instituted or the shares accepted. But if the promise had been made, as is customary, before the gathering of shares, that is, at the beginning when the divisory lot or lottery is published, then it is often added that whoever contributes the first share will have this or that; whoever within so many days contributes so many shares will have that; whoever within such a time surpasses the rest in number will have this. In that case they would acquire all these things even after the lots have begun, because they were promised to them before the lottery and before the thing itself was sold; then those casting lots must be judged to have consented to this condition. Garcia and Lopez must be understood in this way. Let these things suffice concerning this contract of lottery, about which see Molina and Father Zaa in the Aphorisms under “sale.”
[margin: Garcia, On Contracts, book 3, tractate 2, chapter 20, and Luis Lopez, On Contracts, tractate 2, chapter 23, on promised merchandise for the first or greatest contributor of shares; Molina in the cited place on this lottery contract; Father Zaa, Aphorisms, under “sale,” number 15]