§ 2. On Occult Compensation

Notion. Occult compensation is the act by which someone takes that which is owed to him, while the debtor is unaware.

916. Principle. Occult compensation, with certain conditions concurring, is just and licit. It is 1. just, because he who secretly compensates himself does injury to no one, but takes only what is his own; - 2. licit, because, with the conditions observed, the order also of legal justice and charity is observed (III, n. 521).

917. The conditions are: that commutative justice, legal justice, and charity remain uninjured.

1. Let commutative justice not be injured: a) Therefore let the debt be strict, certain, and demandable; for compensation would be unjust if the debt were either not strict, i.e. from charity or gratitude alone; or uncertain, i.e. only probable, because in doubt the condition of the possessor is better; or not yet demandable, because "he who has a term, owes nothing."⁰¹ - b) Let damage to the debtor be excluded, that is, let him not be exposed to the danger of paying again (or of living in erroneous conscience). This can be excluded, for example, by fictive condonation. - c) Let damage to a third party be avoided; hence do not take away a thing loaned or pledged.

2. Let legal justice not be injured: wherefore the creditor must first, if he can, demand in court, namely for preserving public order.

Nevertheless, if this is neglected, there will be no need of restitution, nor will there be grave sin; indeed not even light sin, if through the judicial way expenses, hatreds, or other grave inconveniences would have to be undergone.

3. Let charity not be injured: let precaution be taken lest one's neighbor receive detriment, for example lest someone undergo an unjust accusation and condemnation of theft, etc.; which nevertheless you are not held to avoid with your own great inconvenience (n. 949). Cf. H. Ap., X, 21; Lugo, disp. 16, n. 87.

Compensation can be made also in another species, if it cannot be made in the same; provided the debtor undergoes no detriment from deprivation of some determined thing, for example a horse, a precious thing, etc.

918. It is asked: Whether servants, workers, officials of the government can steal something to compensate their own labor, which they judge to be greater than the salary concerning which they agreed?

Resp. Negatively, generally speaking, as is clear from the thirty-seventh proposition condemned by Innocent XI. - The reason is that they would act against the pact by which they consented to the lesser price (III, 522-524).

We said generally, because (up to the lowest price) a servant, worker, etc., can compensate himself: 1. If he was compelled by necessity to consent to a notably unequal price. Yet except if the owner had already found others justly for the same small price, or if out of mercy alone he had taken on the servant who asked. - 2. If he increases the works from the will of the owner, whether express or tacit; because then the rule must be observed, namely that every worker is worthy of his wage. But otherwise, if he increases from his own choice; because then he is judged to condone his labor, to conciliate for himself the favor of the owner. - 3. If the owner is judged to consent to compensation, as, for example, can happen with drivers hired at a lower price; for since he knows that he will be defrauded by very many, he is not to be presumed to wish to deprive honest drivers of the due salary, because he guards himself against dishonest ones.

Note. 1. Let confessors not easily permit compensation, as a thing full of dangers. But indeed, to compensation already made, to which no condition required by commutative justice was lacking, it is licit to connive to this extent, that the penitent not be bound to restitution. - 2. What compensation is just can sometimes be left even to the judgment of the creditor, if namely he is God-fearing and prudent, and the danger of self-love is absent; which nevertheless will happen very rarely (Konings, n. 710; Aertnys, l. III, n. 298).