Point III. On Causes Excusing the Taking Away of Another's Thing

The causes which excuse the taking away of another's thing are necessity and hidden compensation.

I. Necessity excuses, as follows:

1. Extreme necessity excuses to this extent, that it is licit to take away what is necessary for succoring the necessity, even a thing of great or extraordinary value. For the division of things proceeding from a human fact can have force only to the extent that it does not prejudice the primary end of things, which is to provide for the life of men. But it would prejudice that end if it were illicit, in extreme necessity, to consume another's thing, or, if only use is necessary, to use it (St. Thomas, II-II, q. 66, a. 7; St. Alphonsus, III, 520).

2. Quasi-extreme necessity excuses to this extent, that it is licit to take away ordinary things, but not extraordinary and choice things. The reason is that such necessity differs little from extreme necessity. Many exclude extraordinary and choice things, because otherwise the character of private ownership seems to be too much restricted, and public order to be exposed to danger more than is fitting (St. Alphonsus, III, 520; cf. St. Thomas, loc. cit., ad 2).

Corollary I. He who is in extreme or quasi-extreme necessity is per se held to ask for another's thing before he occupies it. For the rights of private ownership ought to be judged restricted only to the extent that the primary end of things demands it. But that end does not demand that the owner lack the faculty of assigning the thing by which the necessity of the neighbor may be relieved; but given that faculty, the petition of the neighbor must precede. There is added that otherwise all beggars who lack necessary things could steal what belongs to another, without acquiring it for themselves by begging; and this would necessarily harm order (St. Alphonsus, III, 520, question 2). Make exception: 1° if a determinate thing is absolutely necessary for someone, either because another cannot be obtained, or because another would not suffice; for then there can be no question of assigning the thing, since it has already been assigned. Make exception 2° if the owner is foreseen as about to refuse the petition, because no one is held to what is useless (St. Alphonsus, loc. cit.).

Corollary II. What is licit for relieving one's own necessity is also licit for succoring another's necessity. Yet if someone can succor the needy person from his own goods, he is held to that from charity, rather than to steal another's goods (St. Alphonsus, Homo Apostolicus, tr. 10, n. 15).

Corollary III. If it is asked from what virtue someone is held to succor one who is in extreme or quasi-extreme necessity, I respond: he is held from charity to succor him spontaneously; if he does not succor him spontaneously, he is held from justice not to impede the needy person from providing for himself (St. Alphonsus, III, 520, question 3).

3. Grave necessity (a fortiori common necessity) does not excuse. This is clear first from proposition 36 condemned by Innocent XI: It is permitted to steal, not only in extreme necessity, but also in grave necessity. The reason, moreover, is that the primary end of things, which is that life be provided for, does not demand such a restriction of private ownership. There is added that the contrary doctrine would give occasion to innumerable takings away of another's things. Nevertheless, it is licit for a poor man, for relieving grave necessity, to steal some light thing, "judging probably that the wealthy owner, from mercy, is not unwilling, at least with respect to the substance. But the use of this epikeia ought not to be easy, nor in grave matter; because then the rich would also be reasonably unwilling with respect to the substance" (St. Alphonsus, III, 520, at the end).

4. An obligation of restoring after the necessity has passed is present as follows:

a) If the occupied thing still exists, it must be restored, because only the use, not ownership, was necessary (St. Alphonsus, III, 520, question 5).

b) If the thing has been consumed, the one taking it away is held to restitution if he was not absolutely poor, that is, if he had goods of his own or hope of obtaining them; for it sufficed to receive the thing as a loan. The contrary must be said, for the contrary reason, if he was poor both in thing and in hope. And this holds sufficiently probably even if someone had unjustly stolen the thing before the necessity. The reason is that the obligation of restoring contracted from unjust acceptance is extinguished by the very fact that the thief makes the stolen thing simply his own and consumes it (St. Alphonsus, III, 520, questions 4 and 5).

II. Hidden compensation consists in this: that the creditor, without the debtor's knowledge, procures for himself from the debtor's goods that to which he has a right. It is just and licit, provided the due conditions are observed. It is required:

1. That there be a strict right, and that it be liquid or exigible.

2. That there be a certain right. If it is doubtful, the condition of the possessor is better. Yet some judge that compensation has place when the doubt regards not the fact, for example injury to reputation, which is supposed to be certain, but the right, namely, in the hypothesis posited, the right to compensation through goods of fortune, so that, for example, someone certainly defamed could compensate himself with money for reputation not repaired (cf. St. Alphonsus, III, 544, with the editor's note).

He who has secretly compensated himself with a doubtful right is held to restore the thing if he began to possess in doubtful faith; otherwise, if he proceeded in good faith and cannot overcome the doubt (n. 992).

3. That the debt cannot conveniently be obtained by another way. Namely, one secretly compensating himself per se, although only venially, "sins against common justice, while he usurps for himself judgment of his own thing, with the order of law passed over" (St. Thomas, II-II, q. 66, a. 5, ad 3). He sins only venially because, provided the thing is owed, public order is not gravely disturbed.

Moreover, insofar as it can be done, a thing of the same species as the thing owed is to be taken; likewise, insofar as it can be done, care should be taken that another, for example a servant, not come under suspicion of theft; finally one must beware lest the debtor pay again, for example by remitting the debt, as it were (St. Alphonsus, III, 521; Homo Apostolicus, tr. 10, n. 21).

Corollary. Hidden compensation is often illicit, namely because the required conditions are lacking. Hence the confessor should be very prudent in permitting it; wherefore proposition 37 condemned by Innocent XI is to be noted: "Male and female domestic servants can secretly steal from their masters to compensate their labor, which they judge greater than the wage which they receive."¹ This proposition was deservedly condemned, both because sometimes they so judge too lightly, and because a wage per se less than the work rendered can per accidens be just (n. 917), and because, even if the wage is less than just, there is not always a just cause for obtaining what is owed to oneself by this reason, but per se a greater wage ought first to be asked (St. Alphonsus, III, 522-524).

¹ Denzinger-Bannwart, n. 1187.