[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]
[Footnote 1: Decr. Greg. v. 5, 6.]
[Footnote 2: Op. cit., p. 67.]