he lender being obliged, on account of the failure of the
borrower, to borrow money himself at usury.[3]

[Footnote 1: Roscher, _Geschichte_, p. 27.]

[Footnote 2: II. ii. 78, 2, ad. 1.]

[Footnote 3: Ashley, _op. cit._, vol. i. pt. i. p. 400.]

Closely allied to the title of _damnum emergens_ was that of _lucrum
cessans_. According to some writers, the latter was the only true
interest. Dr. Cleary quotes some thirteenth-century documents in which
a clear distinction is made between _damnum_ and _interesse_;[1] and
it seems to have been the common custom in Germany at a later date
to distinguish between _interesse_ and _schaden_.[2] Although the
division between these two titles was very indefinite, they did not
meet recognition with equal readiness; the title _damnum emergens_
was universally admitted by all authorities; while that of _lucrum
cessans_ was but gradually admitted, and hedged round with many
limitations.[3]

[Footnote 1: _Op. cit._, p. 95.]

[Footnote 2: Ashley, _op. cit._, vol. i. pt. ii. p. 401.]

[Footnote 3: Cleary, _op. cit._, p. 98; Endemann, _Studien_, vol. ii.
p. 279; Bartolus and Baldus said that _damnum emergens_ and _lucrum
cessans_ were divided by a very narrow line, and that it was often
difficult to distinguish between them. They suggested that the
terms _interesse proximum_ and _interesse remotum_ would be more
satisfactory, but they were not followed by other writers (Endemann,
_Studien_, vol. ii, pp. 269-70).]

The first clear recognition of the title _lucrum cessans_ occurs in
a letter from Alexander III., written in 1176, and addressed to the
Archbishop of Genoa: 'You tell us that it often happens in your city
that people buy pepper and cinnamon and other wares, at the time worth
not more than five pounds, promising those from whom they received
them six pounds at an appointed time. Though contracts of this
kind and under such a form cannot strictly be called usurious, yet,
nevertheless, the vendors incur guilt, unless they are really doubtful
whether the wares might be worth more or less at the time of payment.
Your citizens will do well for their own salvation to cease from such
contracts.'[1] As Dr. Cleary points out, the trader is held by this
decision to be entitled to a recompense on account of a probable loss
of profit, and the decision consequently amounts to a recognition of
the title _lucrum cessans_.[2] The title is also recognised by Scotus
and Hostiensis.[3]

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