Section 2. Hidden Compensation

426. What it is, whether it is licit. a. Hidden compensation is an act by which someone secretly takes from the goods of the debtor what is owed to himself.

b. Hidden compensation of itself is illicit; yet if the due conditions are present, it becomes licit. The reason for the first is that the common good demands that, to forestall disorders which easily arise from hidden compensation, the creditor should strive to recover possession of his own thing by both private and public petition through a judge. As to the second: with respect to the thing it is licit because one secretly compensating himself does not take another's thing, but his own; and if the required conditions are present, even with respect to the mode it becomes licit. Therefore the debtor, even if unwilling, nevertheless cannot be reasonably unwilling.

Hidden compensation in practice is rarely to be advised, especially because danger of abuse and deception threatens. Yet let the confessor know that after the fact he cannot obligate the penitent to restitution if the due conditions were present.

427. The required conditions are four:

a. That the debt be true, founded in strict right, which the creditor actually has in the thing to be taken for himself.

If a master promised a servant that from gratitude for service faithfully furnished he would give him a certain sum of money as a gift or leave it by testament, but the master did not make the gift or died intestate, the servant cannot secretly take the promised money, because he does not have a strict right in it.

b. That the debt be certain, both because in doubt the condition of the possessor is better, and because each one has the right of retaining the thing possessed unless it is established that it is another's, and finally because otherwise, on account of danger of deception, many would be deprived of their own thing.¹

Since the opinion which holds that restitution must be made also in goods of another kind is only probable, it is not licit for him who has been injured in another kind of goods, for example, in reputation, to compensate himself in goods of fortune, if the defamer does not restore the reputation taken away.

c. That the debt cannot be obtained by another way: for the common good demands that the creditor first strive to recover his own thing by the ordinary way, and only if he cannot seek it without difficulty (quarrels, enmities, expenses, etc.) or if the petition is foreseen to be useless (on account of defect of proof or malice of the judge or debtor), is it licit secretly to compensate himself.

Moreover note: alpha. the defect of this condition indeed renders compensation illicit, since it is against legal justice, but not unjust, and therefore it does not involve the burden of restoring. beta. This defect, even where it can easily be avoided, does not exceed venial sin.

d. That damage of the debtor or of a third person be forestalled. This damage of the debtor can be twofold: namely that he remain in the erroneous conscience of a debt still to be paid, and that he pay the debt twice. But each can be forestalled, if there is need, by a fictitious condonation.

Damage of a third person can occur because others (servants, household members) can come into suspicion of theft with danger of infamy or penalty.

It is clear that he who compensates himself is bound only from charity to forestall these damages, because one compensating himself uses his own right. Therefore if a sufficient reason is present for permitting the damage of others, he acts licitly, even if others suffer damage.

¹ Cf. Lugo, De iustitia, disp. 16, n. 94 s.; Vermeersch, l. c., n. 333.

428. On hidden compensation of servants (the same is valid of a worker, artisan, official) it must universally be said that servants are permitted what others are permitted. Namely, where the due conditions are not lacking, they can compensate themselves for work which, with the wage received, they rightly judge to be greater. But in particular these things are to be noted:

1. If the master does not pay the wage concerning which he made an agreement with the servant, or if he unjustly subtracts something from the stipend, the servant can compensate himself. But beyond the wage concerning which there was agreement, provided at least it is the lowest wage, it is not licit to compensate himself: for beyond the just pact to which he himself consented, nothing is owed to him.

A master who subtracts from the wage because the servant inadvertently breaks vessels or damages instruments acts unjustly unless an agreement has intervened concerning this matter. Yet if a servant more often inflicts damage from inadvertence, the master could licitly impose a moderate fine upon him and thus deduct something from the wage.

2. If agreement has been made concerning a wage below the lowest wage, it is not licit for the servant to compensate himself if he freely consented to this wage, or if the defect of the wage is compensated by other advantages, for example, by a richer table, by occasion of receiving gifts, by garments given as a gift, etc.; for he has a right to nothing else. But he licitly compensates himself: a. if, compelled by force or fear, he consented to a stipend less than just; b. if, compelled by necessity, he made an agreement concerning a wage less than just, with the exception if the master had received the servant asking from mercy alone; c. if, against his will, he is burdened with works not owed.

3. If a servant increases the labors owed and does this by his own will, he cannot compensate himself; but he can if he does this from the will of the master, whether express or tacit. Moreover, if the servant is received not for determined labors, but simply for domestic labors, so that he ought to spend his whole work in the service of the master, labor cannot be called not owed unless it is such that it could in no way have been foreseen, such as nocturnal or dangerous labor.

a. Nearly the same thing must be said to the question whether sons under family power are permitted to compensate themselves secretly if they have not received a just stipend for their labor. Nevertheless the conditions required for hidden compensation will more rarely be present in this case. Wherefore confessors before the fact should incline rather to the stricter side, but after the fact sons are not easily to be driven to restitution: for even if justice has been injured, condonation can more often be presumed.

b. Those things which have been said concerning servants may also be transferred to merchants: they cannot compensate themselves by diminishing weight or measure if they themselves freely sold goods at a certain price which afterward they judge too low. But they can secretly compensate themselves: alpha. if they were unjustly compelled to sell below a just price; beta. if through error they sold below a just price; gamma. if they cannot procure payment of a certain debt for themselves without grave inconvenience.

c. Proposition 37 condemned by Innocent XI¹ does not prohibit any compensation whatsoever of servants; for the proposition was condemned because it is too vague and indeterminate. And indeed from that proposition it would follow that servants could compensate themselves even when they freely consented to an agreement concerning a lesser wage or when they judge only probably that more is owed to them.

¹ "Domestic male and female servants can secretly take from their masters for compensating their work, which they judge greater than the wage which they receive."