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Whether legal action is or is not warranted in such a case was controversial. The Dominicans thought not and accused the Franciscans of usury, even for attempting to recover the principal in the case of borrowers who could repay but refused, because they sometimes recovered more than just the principal from grateful borrowers. The Pope intervened on the side of the Franciscans with respect to the non-recourse Mountains of Piety, but this obviously does not resolve what kinds of extrinsic titles and licit legal actions might apply in the case of mutuum loans.

One of the most controversial of the proposed “extrinsic titles” was lucrum cessans, which some interpret as a blanket license to recover opportunity costs (even though opportunity costs are not ontologically real: see Question 15) from mutuum loans

The Dominicans were arguing for their interpretation of Aquinas’ view on the involvement of the civil law; but note that all parties nevertheless agreed about the fundamentally different nature of the inherently gratuitous mutuum loan and the licit-for-profit societas or non recourse investment.

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