Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ II. On Hidden Compensation
- A twofold compensation is distinguished, legal and extra-legal. The former has place when two persons are mutually debtors to each other, and one reserves to himself the thing owed to the other: thus, for example, if I owe you 100 francs for cloth, and you owe me 100 for wine, each debt is extinguished by compensation. This compensation is manifestly lawful, and is confirmed by the law itself (C.C. 1289 and following). The latter, which is called hidden compensation, is the recovery of one's own thing through the occupation of another's. Of this alone we must treat.
- Principles. I. Hidden compensation can sometimes be just and lawful, if it does not lack the required conditions, that is, if no injury is done to the debtor, nor any disturbance of the order of right follows, nor any disturbance of the Republic. But these three things can be had. And 1. no injury is done to the debtor; for by hypothesis in such compensation you accept only that which is certainly yours, or what is owed to you from strict justice. 2. There is no disturbance of the order of right, since it is supposed either that a judge cannot be approached, at least without notable inconvenience, or that he is unable to restore his right to the injured party. For that is not said to be omitted which would be sought in vain. 3. There is no disturbance or damage of the Republic; for provision is sufficiently made for it by cautions to be placed in the conditions. - Thus St. Lig., n. 521. - Lacroix, n. 959, and also Antoine, c. 5, q. 9, where he says: It is the common sentence; and Collet, de Iustitia, p. 3, c. 4, where he says: Thus nearly all theologians.
- II. But the required conditions are the following: 1. That the debt be certain, at least morally 1. For in doubt the principle is valid: Better is the condition of the one possessing 2. Therefore in doubt compensation is illicit and unjust.
1 Cardinal de Lugo, after he had disputed much concerning this matter, thus concludes (De Iust., disp. 16, n. 102): Therefore when the proofs concerning the fact on the part of the plaintiff, although they are not evident, are nevertheless such that, in the judgment of the Doctors, the judge ought to judge for him notwithstanding the proofs of the adversary, he himself, before the matter is brought to judgment, with the other conditions required for compensation concurring, will be able to embrace the probable opinion, so that he may compensate himself.
Nevertheless (ibid., n. 106) Lugo adds that he prefers to abstain from rendering the last judgment concerning this matter; because, he says, although in particular cases the Authors seem to admit this, as we have seen (n. 95), nevertheless in common, and while they treat the question in its proper terms, they seem commonly to deny it, because perhaps something occurred to them by which our arguments placed above could be dissolved. But perhaps that sentence of Lugo is not far from the common one; for since he supposes that in the judgment of the Doctors the judge would not have judged otherwise, now you have that species of probability which in ethics is equivalent to moral certitude.
2 Elsewhere we warned (see above, n. 79, q. 5) that this saying has less bearing when it is a matter of a probable opinion. Otherwise, unless the matter were certain, the judge could not bring a sentence for either party which does not possess, which is false.
But what St. Alphonsus has (lib. 3, n. 521) must not be passed over: Although certainty of credit is required for compensation, nevertheless very many grave Authors admit that compensation can be made with a credit only probable in three cases, namely when there is compensated 1. reputation with money, 2. infamy with infamy given, and 3. a legacy left in a non-solemn testament.
- That the debt cannot be recovered otherwise, at least without grave inconvenience. For if the creditor can obtain what is owed to him by mere petition or recourse to a judge, then by compensating himself he does injury to public authority, and therefore offends against the order of right.
- That the thing be taken in the same species, if this can be done. For otherwise the thing of the debtor is exchanged without his consent, and therefore unjustly.
- That damage to the debtor be guarded against, namely by taking care that the debtor is not exposed to the danger of paying twice, if perhaps he is going to restore. Hence if that case is foreseen in some way, he must be warned in some way, for example, by a fictive renunciation or remission, etc. 3. But if, after compensation has been made, he restores, it will have to be restored to him again. Moreover, that case will be rare, since compensation is not lawful except where there is no probable hope of recovering the debt 4. - St. Lig., n. 521.
3 In practice these things will be able to be done with difficulty in such a way that some suspicion of compensation having been made will not often enter the mind of the debtor; and grave inconveniences could thence come upon the creditor, for example, if it is a matter of a servant. Therefore, if these are feared from the warning, this can be omitted; and if any damage should thence befall the other, let him impute it to himself and his own inequity; for the creditor has used his own right.
4 Understand: where there is no probable hope of recovering one's own without some grave inconvenience. For although the hope were not only probable but plainly certain of recovering one's own through recourse to a judge, nevertheless this recourse would involve the creditor in grave difficulties and vexations of lawsuits, enmities, expenses, etc.; and therefore he would not have to be prohibited from hidden compensation, as the Author himself also warns below.
- Questions. Q. 1. Whether servants judging that their salary is below the work furnished by them can use hidden compensation?
Resp. Negatively, at least generally speaking, with the common sentence 5. It is evident 1. from proposition 37 condemned by Innocent XI: Domestic male and female servants can secretly steal from their masters to compensate their labor, which they judge greater than the salary which they receive. 2. From reason; for they would act against the agreement, since they consented to the lesser price, and on the other hand nothing is owed to them except the price concerning which there was agreement. Besides, if this were lawful, the way would be opened to innumerable thefts; for servants would easily persuade themselves that their wages are less than just; thus no security would remain for masters. - The same must also be said, from parity of reason, of all workmen, craftsmen, and merchants who would wish to have recourse to compensation under the pretext of the lower price at which they hired out their works or sold their merchandise.
5 P. Gury in another edition (year 1865) had placed this response under the same question entirely: Resp. Affirmatively, if the due conditions are present. But the case can happen if the servant is compelled by force and fear to consent to an unequal price (namely, unjust); if compelled by necessity he consented to it, provided nevertheless that the master would not have found other servants at the same low price, yet a just one, or did not accept this one asking from mercy; if he is burdened by undue works. Yet the danger which can arise from fallacious judgment must be guarded against. Therefore proposition 37 was deservedly condemned by Innocent XI, which thus generally established: Male and female domestic servants can secretly steal from their masters in order to compensate their labor, which they judge greater than the salary which they receive. The reason of the condemnation of this proposition is, namely, that servants are generally very prone to deciding wrongly that the salary is below the work furnished by them. Thus in that Edition.
Moreover, it is easily plain that of each response, although contrary in appearance, there is in reality one and the same doctrine. But the inconvenience of this apparent contradiction could easily have been avoided if the question had been proposed in other words than those by which the condemned thesis is expressed; and it would have been ready to respond that it is lawful for servants to do what is lawful for all, namely to use hidden compensation when the due conditions are not lacking. Nor does the condemnation of that thesis stand in the way; for it cannot be said that Innocent XI wished by that condemnation to oblige servants to bear damage contrary to the laws of justice, when the crime of wages unjustly denied to workers is counted in catechisms among those things which as it were by crying out provoke against themselves the anger of almighty God. That thesis was deservedly condemned, not only because servants very often judge badly that more is owed to them than what they agreed upon from the beginning, but also because for lawful hidden compensation other conditions besides the wounding of justice are required.
I said, at least generally speaking, because not a few except: 1. if the servant is compelled by force or fear to consent to an unequal price. 2. If compelled by necessity he consented to it, provided nevertheless that the master would not already justly have found other servants at the same low price, or did not accept this one asking from mercy. 3. If unwillingly he is burdened with undue works 6.
6 Thus St. Alphonsus (lib. 3, n. 622): A servant, when he is compelled by his poverty to agree thus (namely at less than a just price), then does not yield his right voluntarily, but by compulsion, and therefore his poverty cannot excuse the master so that he does not pay him at least the lowest wage. But when a servant compelled by necessity agrees for a small price (namely below the lowest), he will be able to compensate himself up to the lowest price; as Viva says with Lessius, Suarez, Molina and Dicastillus, and others very commonly. Yet this holds unless the master would already justly have found other servants for the same small price (that is, within at least the lowest limits of the just price); or unless the servant had been offered of himself, and the master from pity, or need, used him.
Q. 2. Whether at least a servant, increasing the works owed, can compensate himself?
Resp. 1. Negatively, if he acts thus by his own choice, because then he is judged to give his work gratis in order to conciliate the favor of the master to himself.
Resp. 2. Affirmatively, if he increases the works from the will of the master, whether expressed or tacit, because then the workman is judged worthy of his wage by right. - St. Lig., n. 523. - But what compensation is just can sometimes be left also to the judgment of the servant, if he is God-fearing and prudent, and danger of self-love is absent; yet this will happen very rarely. - St. Lig., n. 524.
- Q. 3. Whether he who is condemned by a judge to pay a debt which he certainly did not contract, or which he certainly has already satisfied, can use hidden compensation?
Resp. Affirmatively, because the sentence of the judge is unjust, as founded on a false presumption of fact, and therefore cannot oblige in conscience. For although one must always stand by the sentence of a judge in a matter of law, unless it is a matter of an evidently unjust law or sentence; nevertheless otherwise, scandal being excluded, if the judge certainly errs concerning a fact which from error he thinks true. Moreover, the judge does not have the faculty of transferring dominion; nor can he who obtained a favorable sentence, even when the error has been detected, keep the thing adjudged to himself. - Thus commonly Moullet, t. 1, p. 491.
- Q. 4. Whether he sins gravely and against justice who compensates himself without first having recourse to a judge?
Resp. 1. He does not sin of itself against justice, provided he accepts only as much as is owed to him; nor therefore is he held to restitution. The reason is plain, because with this compensation having been made, equality is restored between him and the debtor. I said, of itself, because sometimes a detriment could follow for the debtor from the privation of some determined thing, for example, a horse, a precious thing, etc. - Lugo, d. 16, n. 19, and others.
Resp. 2. Nor does he sin gravely, generally speaking; because ordinarily grave scandal or grave disturbance of the republic does not follow from this inversion of order. - Lugo, ibid.
Resp. 3. He sins in no way if recourse to a judge is difficult, if there is danger of scandal, or extraordinary expenses, etc.; because then recourse is morally impossible. - See Casus, n. 573 and following.