§ 2. On Occult Compensation

Notion. If someone cannot conveniently vindicate publicly his own strict right, whether because of fear or because of some other moral inability, occult compensation comes into use; this can be defined as the recovery of one's own thing through the occult occupation of another's thing. Strictly speaking, occult compensation is had if someone secretly procures for himself an equivalent price for a thing or labor handed over; nevertheless, in a broader sense, the recovery of one's own thing itself, unjustly detained by another, can also be called occult compensation. We take compensation in both senses.

88. Principle. Occult compensation, clothed with due conditions, is indeed a) licit, but b) rarely to be exercised, and c) even more rarely to be counseled by a confessor.

It is explained and proved. a) Occult compensation clothed with due conditions is licit. For if those conditions are present, concerning which there will presently be discussion, by occult compensation neither the right of the neighbor nor social order is injured, and nothing else is done except just defense against the injury of another.

b) Occult compensation is rarely to be exercised, because it is full of dangers of illusion and disturbance. Now it is not lawful to expose oneself to dangers except rarely and when true necessity demands it.

c) Occult compensation is more rarely to be counseled by a confessor; for although it is licit in the forum of conscience, it is not usually recognized in the civil forum, but is punished as theft. Therefore the confessor who counsels it exposes himself to the danger of receiving punishment from a civil tribunal on account of instigation to theft. The Spanish Civil Code, however, a. 1195 sqq., in some way permits compensation.

Required Conditions. In order that occult compensation be licit, these conditions are required:⁴⁶

1. that the debt be strict and certain;

2. that the debt cannot be recovered otherwise without notable inconvenience;

3. that damage to the debtor or to a third person be prevented.

⁴⁶ Cf. Dominic Soto, De iure et iust. l. 5, q. 3, a. 3.

89. Therefore the first, and principal, condition, in order that occult compensation be licit, is that the debt be a) strict and b) certain. A strict debt arises from true ownership acquired. Hence if there is present only fittingness, or only an obligation of fidelity, but not a true obligation of commutative justice, it is not lawful to employ occult compensation; e.g., if a master liberally promised a gift but did not provide it, a servant cannot compensate himself secretly. Then it is required that the debt be morally certain. A twofold certitude is distinguished: of right and of fact. Certitude of the fact founding the right is wholly required; e.g., the fact of donation, purchase, etc., must be certain. According to St. Alphonsus,⁴⁷ however, in three cases probability of right is enough, and certain right is not required, "namely, when reputation is compensated with money; infamy with infamy given; and a legacy left in a non-solemn testament." The last case is explained a little more broadly, for the first two can very rarely be brought into practice.⁴⁸ A testament is present which is not clothed with legal form and therefore is invalid in the external forum. In this testament several legacies are assigned, which, if they were expressed in due form, would give the legatees a certain right; now, however, they give them only a probable right, since several grave theologians teach that an informal testament is invalid even in the forum of conscience. Therefore in that case there is certitude of fact, namely, the testament certainly exists; but there exists only a probable and not a certain right to the legacies designated in the testament. Nevertheless, according to St. Alphonsus and other authors, in that case (before the sentence of a judge) the legatee can licitly procure the legacies for himself by occult compensation. In practice this case cannot be solved except by attending to modern civil codes.⁴⁹ But almost never is it lawful to exercise compensation with a probable right, unless from the counsel of a prudent confessor or of another expert and God-fearing man, because otherwise there is grave danger of hallucination in one's own cause.

The second condition for licit occult compensation is the moral impossibility of otherwise recovering one's own thing. For the order of law and the common good demand that everyone try to recover his own thing by the ordinary way,⁵⁰ and only if he cannot seek it without notable difficulty, e.g., without quarrels, expenses, or other grave inconveniences, is it lawful to leave this ordinary way by secretly compensating himself. For the rest, this condition obliges only under light sin.

The third condition requires that damage to the debtor or to a third person be prevented. From occult compensation manifold damage can arise; e.g., the debtor erroneously thinks that he still ought to pay, and therefore pays twice; a third person can come under suspicion of theft. It is plain that the occult compensator ought to avoid these damages, insofar as is possible. For charity demands this.

⁴⁷ Theol. mor. l. 3, n. 521.

⁴⁸ Cf. Concina, De iure et iust. l. 2, diss. 4, c. 16, n. 43.

⁴⁹ Cf. below n. 277.

⁵⁰ Cf. S. theol. 2, 2, q. 66, a. 5 ad 3.

90. Resolutions. 1. Servants, workers, craftsmen, officials, etc., sometimes say that they compensate themselves secretly because they think they do not receive a sufficient salary; but rarely is this compensation licit, because often the three conditions recounted above for the liceity of occult compensation are lacking. Especially the first condition is usually lacking, namely, servants do not have a strict and certain right to compensation. For this reason Innocent XI proscribed the proposition: "Domestic male and female servants can secretly take from their masters for compensating their labor, which they judge greater than the salary which they receive."⁵¹ This proposition indeed seems to have been condemned because it is too vague and can easily be understood in a false sense; but servants can licitly compensate themselves a) if they are forced to labors not stipulated in the contract; b) if they are forced to a salary wholly insufficient and unjust;⁵² c) if they are forced to repair damage which they caused without fault, e.g., by breaking without fault some precious vase (unless, however, even this repair was stipulated in the contract).

2. Occult compensation is licit if someone has been condemned by a judge wholly unjustly, i.e., if the judge committed an error of fact.

3. Occult compensation is licit if adult children are forced to work in the paternal home and if, according to civil rights, they have a right to a fitting salary, which nevertheless is denied to them. Not all laws (e.g., German law, French law) concede a salary to adult children in these cases, and therefore occult compensation then is not lawful. Swiss law, however,⁵³ concedes a salary.

4. When merchants can secretly compensate themselves by lessening weight or measure will be said below, n. 293.

⁵¹ Denz. n. 1187.

⁵² Cf. St. Alphonsus, l. c. n. 622.

⁵³ Art. 633.