Case LVII: Occult Compensation Justified by a Promise

Martina, a woman1 in poor circumstances, had a wealthy sister Rosina, who was a widow with children. The latter said to her: " If you will send your clever daughter, Caroline, to college, I will pay all her expenses." In consequence of this offer, Caroline finished her course at the high school, and with her aunt's consent proceeded to the college. Rosina kept her word and paid all Caroline's expenses until the time of her death, which occurred suddenly. Martina, knowing that her sister had left no will, at once took $1000 out of her sister's cash-box, a sum which probably would barely suffice to enable Caroline to complete her course. The question is asked whether Martina acted rightly.

With regard to private compensation or indemnification, St. Alphonsus writes as follows in his work " Homo Apostolicus " (X. n. 21): "Three conditions are necessary if private indemnification is to be admissible: (1) The debtor must incur no loss by it; (2) the debt must be just and certain; (3) it must be impossible to obtain payment in any other way, for which reason a creditor should first claim the money by legal methods; although, should any appeal to law on his part involve great expense, or hostility, or any other disadvantage, he does not commit a mortal, or even a venial sin, if he fails to have recourse to it on that account."

A debt is regarded as certain, if it depends legally on justitia commutativa, and not merely ex fidelitate or some other Christian virtue, and if there are no reasonable doubts as to the facts of the case. Authorities warn us against private indemnification in cases where the advantage is based on a mere promise, since a promise, even after it has been received by him for whose benefit it was made, is generally, according to a very probable opinion, binding not ex justitia commutativa, but only ex fidelitate, and it is often uncertain whether the person who made the promise really intended to impose upon himself an obligation binding on his conscience.

Although the laws of Church and State seem opposed to our regarding private indemnification as permissible in the case under consideration, there are several good reasons for thinking it allowable.

(1) By her promise Rosina imposed a charge not only on herself but on her property, so that it may be treated as a promissio realis. She was entitled to do this if it was not to the disadvantage of any possible creditors, and involved no danger of diminishing the proportion that she was legally bound to leave to her heirs. That she fully intended to pledge herself appears from the implied agreement: " do ut facias ": i. e., " I pay the expenses, if Caroline studies." Such a promissio realis, according to Lehmkuhl (n. 1062, 4), passes on to the heirs: "if, after a promise has been accepted but before its execution, the promisor dies, a real promise passes to the heirs; a personal promise does not pass."

As secret indemnification seemed to be the only way by which Martina could obtain, after Rosina's death, the money to which she was entitled, it cannot be considered Wrong. But the whole amount must be spent on Caroline's education. If for any reason she should not complete her course, the balance properly belongs to Rosina's heirs. (2) If the person promising foresees that failure to comply with his promise would cause serious loss to the other party, the promise is binding, even a purely personal promise, ex justitia commutativa: "every promise binds incidentally in justice if one’s neighbor would suffer loss from its non-fulfillment" (Marca, n. 1062), a circumstance that would plainly occur in this case, if Caroline were unable to continue her studies after Rosina's death. This is another and very important reason for regarding the secret indemnification as permissible.

(3) A third reason would exist if Martina took the money from her dead sister's cash-box bona fide, believing that she had a right to it; for in this case, even if the promise were purely personal, there could be no obligation to make restitution. To the question: "whether the promisee may secretly take the thing promised if the heirs refuse to stand by the promise," Marc answers (n. 1062, q. 4): "I deny it, since the thing probably is not owed in justice. If, however, he has taken possession of the thing in good faith, he may retain it until the judgment of a judge determines otherwise, because of the probability of the opinion affirming an obligation in justice. For in a conflict of probable opinions, one must stand for the possessor, if this is known."

These arguments justify us in regarding Martina's secret indemnification as quite permissible.—Johann Schwienbacher, C.SS.R.