Article II. On Occult Compensation

Occult compensation, which is also called extra-legal, is the recovery of one's own thing by the occupation of another's thing. Concerning this alone we must deal here, and not concerning the compensation which is called legal, and which has place when two persons mutually debtors to each other take in payment the thing owed to the other.

I say 1st. Occult compensation can sometimes be just and lawful, if it enjoys the requisite conditions immediately to be set forth. The reason is that, these being posited, no injury is done to the debtor, nor does any disturbance of the order of law follow, nor any disturbance of the State. And 1st, no injury is done to the debtor; for by hypothesis in such compensation you take only that which is certainly yours, or which is owed to you from strict justice. 2nd. There is no disturbance of the order of law, since it is supposed either that the judge cannot be approached, at least not without notable inconvenience, or that he cannot restore the injured party's right to him. For that is not said to be omitted which would be sought in vain. 3rd. There is no disturbance or damage of the State; for sufficient provision is made for it through the cautions to be placed among the conditions. - Cf. St. Alphonsus, n. 521. - Lacroix, lib. 3, part. 1, n. 959.

I say 2nd. The conditions commonly required for the lawfulness of occult compensation are the following:

1st. That the debt be certain, at least morally. The reason is, both because in doubt the condition of the possessor is better, and because, according to those who say that this axiom has force only for a negative doubt, it is certainly prohibited probably to damage another. - If, however, the doubt is not concerned with the existence of the debt itself, but rather with the mode by which it is lawful to compensate oneself, for example, whether someone can compensate reputation otherwise certainly injured with money, or infamy with infamy given, etc., neither unjust nor illicit will be the compensation which is made with a credit probable only in this respect. - Cf. St. Alphonsus, n. 521. - Lugo, disp. 16, nn. 87 and seq. - Salmant., tract. 13, cap. 1, nn. 318 and seq. - Ballerini, notes (a) and (b), p. 538.

2nd. That the debt cannot be recovered otherwise, at least without grave inconvenience; for if the creditor can obtain what is owed to him by mere petition or by recourse to a judge, then by compensating himself he does injury to the public power, and therefore offends against the order of law.

3rd. That the thing be taken in the same species, if this can be done, because otherwise the debtor's thing is exchanged without his consent, and therefore unjustly.

4th. That damage to the debtor be guarded against, namely by seeing to it that the debtor is not exposed to the danger of paying twice, if perhaps he will restore. - Hence if that case is foreseen in some measure, he must somehow be warned, for example, by a feigned renunciation or condonation, etc. But if, after compensation has been made, he restores, it will have to be restored to him again. Moreover that case will be rare, since compensation is not lawful except where no probable hope of recovering the debt is present. - Cf. St. Alphonsus, n. 521.

Question 1. Whether servants judging that the salary is below the work performed by them can use occult compensation?

Resp. Negatively, at least speaking generally, with the common opinion. It is clear 1st, from proposition 37, condemned by Innocent XI, which reads thus: "Servants and domestic maidservants can secretly take from their masters, in order to compensate their work, which they judge greater than the salary which they receive." - It is clear 2nd, from reason; for they would act against the pact, since they consented to the lower price and otherwise nothing is owed to them except the price concerning which agreement was made. Besides, if this were lawful, the way would be opened to innumerable thefts: for servants would easily persuade themselves that stipends are less than just, and thus no security would remain for masters. - The same thing must also be said, by parity of reason, concerning all laborers, craftsmen, and merchants who would wish to have recourse to compensation under the pretext of the lower price at which they had hired out their services or sold their merchandise. - I said at least speaking generally, because not a few make exceptions: 1st, if a servant is compelled by force or fear to consent to an unequal price; 2nd, if compelled by necessity he consented to it, provided however that the master would not have found other servants at the same cheap price, or did not except this one asking, out of mercy; 3rd, if unwillingly he is burdened with undue works. - Cf. St. Alphonsus, n. 522. - Ballerini, note (c), p. 539.

A servant increasing the works owed cannot compensate himself if he so acts by his own choice, because then he is judged to grant his work gratuitously in order to win for himself the favor of the master; but he can compensate himself if he increases the works from the will of the master, whether expressed or tacit, because then the worker is judged worthy of his wage by right. But what compensation is just can sometimes be left even to the judgment of the servant, if he is God-fearing and prudent, and the danger of self-love is absent, which nevertheless will happen very rarely. - Cf. St. Alphonsus, n. 523 and seq.

Question 2. What must be said specifically, in this matter, concerning those who are in charge of cars drawn along railways, as is usual among us?

Resp. If by the judgment of God-fearing men the price which they receive is in truth unjust, namely below the minimum, theologically speaking it is lawful for them to compensate themselves occultly, provided however that all the conditions required for this and enumerated above have been verified. The reason is that the masters then would be irrationally unwilling; indeed some say that they are not properly unwilling nor ignorant of this compensation, and that for this reason they grant them so small a salary, because they suppose something to be taken secretly; but that those various and day by day new means which they use for preventing frauds are ordered to restrain dishonest men who would wish to overstep the limits of just compensation. - But, speaking practically, a prudent confessor must be altogether cautious in this question; wherefore let him never speak of it publicly, but only privately, while he hears confessions or exercises the office of theological counselor. Besides, let him more readily concede such compensation after the fact, and almost evasively, on account of the danger which ordinarily exists if one acted otherwise.

Question 3. Whether he who is condemned by a judge to pay a debt which he certainly did not contract, or which he certainly has already satisfied, can use occult compensation?

Resp. Affirmatively, because the sentence of the judge is unjust, as being based upon a false presumption of fact, and therefore cannot bind in conscience. For although one must always stand by the sentence of a judge in a matter of law, unless it is a question of a law or sentence evidently unjust; nevertheless it is otherwise, scandal being excluded, if the judge certainly errs concerning a fact, which through error he thinks true. Moreover, the judge does not have the faculty of transferring dominion; nor can he who obtained a favorable sentence, when the error has been detected, keep the thing adjudged to him.

Question 4. Whether he who compensates himself before first having recourse to the judge sins gravely and against justice?

Resp. 1st. He does not sin per se against justice, provided that he takes only so much as is owed to him; nor therefore is he held to restitution. The reason is clear, because when this compensation has been made, equality is restored between himself and the debtor. I said per se, because sometimes a detriment can follow for the debtor from the privation of some determinate thing, for example, of a horse, of a precious thing, etc. - Lugo, disp. 16, n. 19.

2nd. Nor does he sin gravely, speaking generally; because ordinarily from this inversion of order there follows neither grave scandal nor grave disturbance of the State. - Lugo, ibid.

3rd. He sins in no way if recourse to the judge is difficult, if there is danger of scandal, or extraordinary expenses, etc., because then recourse is morally impossible.