§ II. On Hidden Compensation

Hidden compensation is the recovery of a thing owed to me through occupation of a thing of the debtor, done without this debtor's knowledge.

708. Principles. - I. Hidden compensation can sometimes be just and licit, 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 of the Republic. But these three can be present. And 1° No injury is done to the debtor; for by hypothesis in such compensation you receive 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 the judge cannot be approached, at least not without notable inconvenience, or that he cannot 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 enough is provided for it by the cautions to be placed in the conditions. - Thus S. Alph.,¹ Lacroix,² etc.

709. • II. But the required conditions are the following: 1° That the debt be from justice, morally certain, demandable. From justice, not from charity alone or gratitude. - Certain; for in doubt the principle is valid: The condition of the possessor is better. Therefore in doubt compensation is illicit and unjust. - Demandable ("due").

2° That the debt cannot be recovered otherwise, at least not without grave inconvenience. For if the creditor can by mere petition or recourse to a judge obtain what is owed to him, by compensating himself he does injury to the public power, and therefore sins against legal justice (n. 712).

3° That the thing be taken in the same species, if it can be done. Otherwise the debtor's thing is exchanged without his consent, and therefore unjustly.

4° That it be done from a thing of the debtor. Otherwise it would be done with damage to a third party, as would happen if it were done from a thing deposited with the debtor or lent to him for use.

5° That damage to the debtor be guarded against, namely by taking care that the debtor or his heirs not be exposed to the danger of paying twice, if perhaps they are going to restore. Hence if that case is in some way foreseen, they must be warned in some manner, for example through a fictitious renunciation or condonation, etc. But if, after the compensation has been made, they restore, it will have to be restored to them again.³

710. Questions. - Query 1° Can servants, workers, officials of the government, municipality, etc., judging that the salary is below the work furnished by themselves, use hidden compensation?

Resp. Negatively, at least speaking generally, with the common opinion. It is established 1° from proposition 37 condemned by Innocent XI, p. XVI. 2° From reason; for they would act against the agreement, since they consented to the lesser price, and from elsewhere nothing is owed to them except the price concerning which agreement was made. Besides, if that were licit, the way would be opened to innumerable thefts; for servants would easily persuade themselves that wages are less than just, and thus no security would remain for masters. - The same must also be said, from parity of reason, concerning all workers, artisans, and merchants who would wish to recur to compensation under the pretext of the cheaper price for which they hired out their works or sold their wares.

I said: at least speaking generally; because a servant can compensate himself up to the lowest price. 1° If he 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 have found other servants already justly, that is, within the limits of a just price, at least the lowest, at the same cheap price, or did not receive this one asking from mercy. 3° If unwillingly he is burdened with works not owed. 4° If the master is judged to consent to compensation, as for example can happen in the case of those who among us are called "horse-car conductors"; namely, it is supposed that by most masters those men are hired below the lowest price for this reason, that they know that they are to be defrauded by most, and that the masters are not willing (which besides they would will unreasonably) to deprive honest conductors of due salary because they protect themselves from dishonest ones. But in determining their salary, "conductors" should especially attend to the number of hours which they spend in the service of their masters, and to the salary which is given by the hour to workers of their condition. Meanwhile they must be exhorted to seek another trade, on account of the danger of injustice to which they expose themselves.

Query 2° At least can a servant who increases the works owed compensate himself?

Resp. 1° Negatively, if he acts thus by his own choice, because then he is judged to condone his work 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 express or tacit, because then the worker is judged worthy of his wage by right.¹ - But what compensation is just can sometimes be left also to the judgment of the servant, if he is fearful of God and prudent, and the danger of self-love is absent; which nevertheless will happen very rarely.²

711. • Query 3° Can he use hidden compensation who is condemned by a judge to pay a debt which he certainly did not contract, or to which he certainly has already made satisfaction?

Resp. Affirmatively, because the sentence of the judge is unjust, as being founded upon a false presumption of fact, and therefore cannot bind in conscience. For although one must always stand by the sentence of the judge in matter of law, unless it is a question of a law or sentence evidently unjust, it is otherwise, scandal being set aside, if the judge certainly errs concerning a fact which from error he thinks true. From another source, moreover, the judge does not have the faculty of transferring dominion; nor can one who has obtained a favorable sentence, even after the error has been detected, keep the thing adjudged to him. - Thus commonly.

712. • Query 4° Does he sin gravely, and against justice, who compensates himself without first having recourse to the judge?

Resp. 1° He does not sin of itself against justice, provided he takes only as much as is owed to him; nor therefore is he bound to restitution. The reason is clear, because, this compensation having been made, equality is restored between him and the debtor. I said: of itself; because sometimes detriment could follow for the debtor from deprivation of some determinate thing, for example a horse, a precious thing, etc. - Lugo,² and others.

Resp. 2° Nor does he sin gravely, speaking generally; because ordinarily from this inversion of order neither grave scandal nor grave disturbance of the Republic follows. - Lugo.³

Resp. 3° He does not sin in any way if recourse to the judge is difficult, if there is danger of scandal, or extraordinary expenses, etc., because then recourse is morally impossible.

Admonition. - Confessors should not easily advise compensation, and should rarely even permit it. But to compensation already made, to which none of the necessary conditions is lacking, it is licit so far to connive, that the penitent not be bound to restitution.

To recover one's own thing, even by employing moderate force, is licit, whether when the unjust robber is caught in the very delict, or when the thing has not yet been put in safety; indeed it is licit if it has been put in safety by the robber, provided it is movable and still exists in species. For in the former hypothesis you use the right of defense (n. 471. 1°); in the other, neither is the right of the robber injured nor is the order of right passed over. Mar. p. 333. n. 185.