Case LXV: Occult Compensation and Mental Reservation

Tullius, a wealthy but parsimonious widower, makes promise to his servant girl Claudia to marry her within a year’s time, which promise Claudia accepts with pleasure and returns on her part. In the meantime another advantageous offer of marriage is made to her by another party, which she refuses in view of her expected marriage to Tullius. Subsequently, Claudia learns that Tullius is about to marry another person who possesses a considerable fortune. To Claudia’s inquiries Tullius answers that he indeed has this intention, and he disputes that he ever made Claudia an actual promise of marriage, nor will he agree to any compensation. Claudia, realizing that further representations will be useless, and unable to produce legal proof that a betrothal exists between her and Tullius, tries to think of a means of getting indemnity some way or another. An opportunity soon presents itself. One day as Tullius returned home with a well-filled pocketbook he dropped it unawares while ascending the stairs. Claudia observed it, picked up the pocketbook secretly, and took the money contained therein, amounting to about $600, to a place of safety. Claudia believed she was doing no wrong, but was acting only in self-protection. When Tullius missed the pocketbook, his suspicions fell immediately upon Claudia; thinking that she had taken the pocketbook either out of his coat or from his desk. He accused her of the theft and had her arrested and examined. She asserts that she neither wrongfully appropriated nor stole anything from her employer. This deposition she confirms finally by oath, whereupon, for lack of evidence, she is set free.

Questions —(1) Has Claudia a justifiable claim for compensation? Is Tullius obliged to make restitution to her? (2) If this is affirmed, the question is: May Claudia satisfy her claim by secret compensation? (3) As regards manner and means of Claudia’s act to compensate herself, are they lawful and permissible? (4) Was Claudia permitted to swear to her deposition or did she thereby commit perjury?

To the first question: Claudia has a double right to demand restitution: (a) Because Tullius unlawfully withdrew from the betrothal; (b) because he was the cause of Claudia’s refusal of an offer of marriage made by another. About the sum to be given in restitution Lehmkuhl observes: Qui injuste a sponsalibus recedit.. adigitur ad justam damni compensationem quae.. communiter secundum convenientem puellae dotationem aestimari solet. Therefore, in our case the sum of $600 cannot be considered too much. And even in the case that the betrothal had for some reason been technically invalid, Tullius would still be obliged to make restitution, because Claudia, on account of his promise of marriage, rejected another advantageous offer, and thus through his fault suffered great loss. There can be no doubt, therefore, about Claudia’s right to compensation.

Answering the second question: Secret compensation (compensatio occulta) is allowed in the presumption: (a) that the claim is without all doubt certain; (b) that it is impossible, or at least difficult, to attain one’s right by ordinary and legal means. That the first presumption is true in our case is clear from the answer given above to the first question. That the other condition prevails is evident from the statement of the case. Hence, Claudia is justified to resort to secret compensation in order to satisfy her just claim.

To the third question: When once the lawful claim is established, then the manner of compensating oneself is immaterial, any manner is permissible, provided (a) that neither the debtor nor a third party suffers unjust injury; (b) that those who compensate themselves in this way must not thereby inflict upon themselves a relatively greater injury, or place themselves in imminent danger of losing a greater good. Regarding the first point it cannot be seen how in our case a third party might suffer loss. Not even Tullius is unjustly injured. This would be the case only then if he afterward repented and voluntarily made restitution to Claudia, which, however, is evidently improbable. And should he do so, Claudia would be in a position to refuse the proffered compensation wholly or in part. The first-named presumption is true, therefore, in our case, and on that account Claudia’s procedure is not unlawful. It is different with the second presumption. The way and means by which Claudia helps herself to her rights are at all events very dangerous for her. She puts herself in danger of losing freedom and honor before the world. If her act had been proven against her she would have been branded as a thief and perjurer. Proper self-love does not permit that, on account of a lesser good (in our case, the money), one should expose oneself to the danger of losing a higher good, honor and liberty. Nevertheless, even though Claudia’s action, because of the danger incurred, may be considered unallowable, still she may post factum retain the money obtained in this way as compensation for the wrong suffered.

To the fourth question: Claudia, in her deposition to the Court, was not guilty of an actual lie, as indeed she neither stole nor wrongfully appropriated anything. She made use of an equivocal expression, the so-called perceptible mental reservation. This mental reservation in the wider and unreal sense (late sen impro-prie mentalis) is, according to the universal opinion of theologians, permissible when sufficient cause is present (Gury, Theolog. moral. I., n. 442, edit. 4; Ratisbon, p. 199). And Claudia could swear to her deposition with good conscience. In regard to this the rule is: Whatever one can state without lying or sinning, one may, for a good reason, also confirm by oath (S. Alph. Liguori, Theolog. mor. I., III., n. 151, et 152). That Claudia had important reason for her action is apparent: not only honor and good name, but even her liberty were at a stake. Hence, it is evident that Claudia committed no perjury, but only a permissible act of self-defense. Dr. Joseph Niglutsch.