Article II: On Hidden Compensation

S. Th. II-II, q. 66, a. 3, ad 3; a. 5, ad 3.

413. Compensation in the present matter is not understood as properly so called or legal, by which the mutual obligation of two debts is juridically extinguished (C. C., a. 1289); but as extralegal and improperly so called, by which a creditor takes away or retains from the goods of the debtor that which is owed to him, or to which he has a right to the thing. This can be defined: the recovery of a debt which is made by one who owes nothing to his debtor.

This is manifest if it is done by recourse to a judge; or hidden if it is done without recourse to a judge, and also of itself and regularly while the debtor is ignorant.

414. Principles. I. Hidden compensation generally is unlawful. - For if it were lawful for each one to vindicate without recourse to judges his own rights which seemed to have been injured by others, a broad way would be opened to thefts, since men are born to exaggerate their own rights and to attenuate those of others. Whence the common good demands, for forestalling disorders which would easily arise from hidden compensation, that the creditor regularly strive to recover his debts through judges. Otherwise he would sin against legal justice, because he violates the order of law.

Namely, when recourse to judges is morally impossible. For then commutative justice and the right of one's neighbor are not injured, since from another's goods there is taken only that which is owed from strict justice. Nor is legal justice injured or public order disturbed, if it is done exceptionally, from a grave cause, when another way is lacking for recovering one's own goods.

415. The conditions required for hidden compensation are enumerated as the following five:

1. That there be a true debt from strict justice, not however from charity alone, gratitude, religion, fidelity, or a certain moral fittingness: for compensation is made in order to recover that which another strictly ought to restore from a delict or pay from a contract; but no one is so bound to pay or restore to another except what is owed from justice. Hence he who gave to another under the title of friendship, kinship, or poverty cannot, if afterward the latter becomes richer, take anything from him in compensation; the poor cannot secretly take from one who vowed to give to them, because from the vow it is owed to them from religion alone, but no strict right has been acquired; a servant to whom his master from gratitude had promised a sum of money or a legacy in a testament does not have a right to compensation, just as neither does a non-necessary heir who has no share in the testament.

2. That the fact (for example, the damage inflicted) be morally certain; for in doubt the condition of the possessor is better, and to each one there is the right of preserving the thing possessed unless it is established to be another's; otherwise, because of the danger of delusion, since men are prone to exaggerate their own rights, a broad way would be opened to spoliations and injustices.

3. That compensation be made to equality, so that no more is received than is owed; whence the thing which is taken away should be of the same value as the thing owed, and if it can conveniently be done, of the same nature and species.

4. That the debt cannot otherwise be recovered without grave inconvenience, for example, without many expenses, quarrels, danger of enmities, or if a request is foreseen to be useless. This seems also to hold concerning a debt proximately future, if there is a moral danger that the debtor will not pay in its own time. For then compensation is, as it were, a just defense, which is lawful not only when the evil is being brought, but also when it is morally imminent. Nevertheless care must be taken lest, from anticipated payment, damage arise to the debtor; whence, for example, less would have to be taken in proportion to the emerging damage and ceasing profit, as is understood from the following condition.

5. That the spiritual and temporal damage of the debtor or of a third party, if it can be done without grave inconvenience, be forestalled: of the debtor indeed, by employing means lest he pay twice, undergo a greater burden, or remain in bad faith, thinking the debt not to have been paid, for which a fictitious condonation can be expedient; of a third party, by avoiding lest another, for example, a servant, be accused of theft, or lest a thing deposited by a third party be taken away.

The first three conditions are required from commutative justice; the fourth from legal justice; the fifth for the most part from charity alone. But since all the conditions are not easily present in practice, therefore hidden compensation is rarely to be exercised, as being full of dangers of illusion and disturbance; still more rarely is it to be counseled.

416. Applications. - 1. Servants and workers who have freely agreed concerning wages cannot use compensation under the pretext that the work rendered is greater than the promised wage: the contract must stand unless it is evidently unjust and is not compensated otherwise, for example, by a richer table, by the occasion of receiving gifts, by clothing given as a gift, etc. Whence proposition 37 was condemned by Innocent XI: "Male and female domestic servants can secretly take from their masters to compensate their work, which they judge greater than the wage which they receive." - They can do so, however, if the master does not pay the wage; - or if he unjustly subtracts something from it, for example, because of a vessel broken without fault, unless this had been stipulated; - or because, compelled by force or fear, they agreed concerning a wage which is less than just, or by necessity, unless the master had received them from mercy alone.

2. A servant who of his own accord increases the owed works acquires neither a right to a greater wage nor therefore to compensation, because he is judged to do this gratis to conciliate the favor of the master to himself, for example, because otherwise the master would be indignant or would treat him less benevolently. But if he does this from the express or tacit will of the master, he merits a greater wage; and therefore if, this not being paid, the servant compensated himself, he is not obliged to restitution.

3. Merchants who freely sell at a certain and definite price below the legitimate price cannot secretly compensate themselves by unjust weight or measure; - they can if they were unjustly forced to sell below the just price, - or through error sold below the price, - or cannot procure for themselves the payment of a certain debt without grave inconvenience.