Occult compensation and its conditions

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."

WHAT another owes me in justice I have a right to have, and if he refuses to give it to me, I.may compel him by having recourse to law. Sometimes, however, this means of enforcing my rights is uncertain, costly, and accompanied by great inconvenience. Under certain conditions I shall be safe in conscience if I covertly take what belongs to me. If I do this, I only take my own; I only defend myself from a continual injustice which was being inflicted on me by one who detained my property against my reasonable will.

Such an act of occult compensation, as theologians call it, may be allowed in conscience on four conditions:

(a) The debt must be morally certain. If I have only a probable right, I may have recourse to the law to have the question decided, but with only a probability on my side I must not deprive another of what he possesses with a probable right on his side. In such a case, melior est conditio possidentis.

(b) There must be a difficulty in vindicating my right by ordinary legal process. For if there be no difficulty, I must not take the law into my own hands; public order and peace require that. Even though from occult compensation there be no fear of a breach of the peace, yet no man is a safe judge in his own case.

(c) I must not secretly take what belongs to me when there is likelihood of being paid after all. wrong my debtor and be paid twice. By so doing I should

(d) I must take compensation in the same kind of property as far as possible; the debtor must not be forced to sell or barter his property against his will. Of these conditions the first is the most important, but all should be loyally and conscientiously observed in those special cases when we may have recourse to occult compensation,

Conditions Required by Commutative Justice for Occult Compensation.—(a) Before the Compensation.—There must be a strict right to the thing taken; for, if there is no such right, one takes what belongs to another against his will, or commits theft. Hence, if an employer has freely promised to make a gift to his servant and then fails to keep the promise, the servant has no right to take what was promised, since it is owed from liberality or fidelity or gratitude, but not from commutative justice. The same applies to a non-necessary heir who has been left nothing in a will, since he had no strict right. It is also unjust to take secret compensation for a debt that has not yet fallen due.

(b) During the Compensation.—No wrong must be done to the debtor (e.g., by taking more than is due, by taking an article which the debtor needs for earning his living) or to third parties (e.g., by taking goods deposited by them with the debtor). If possible, compensation should be made from goods of the same nature and kind as those that were taken or damaged, for the debtor should not be forced to part with things he wishes to retain and which are not necessary for the creditor’s satisfaction.

(c) After the Compensation.—One must avoid injury to the debtor (e.g., the keeping of a payment which is now not owed by him and which one can refuse or return to him) and to third parties (e.g., the casting of suspicion on a servant in order to divert attention from one’s act of occult compensation).

Must the strictness of the right be morally certain, or, in other words, must reasonable doubt of fact and of law be excluded?

(a) As to doubt of fact, it must be excluded; for in such doubt the presumption is with the possessor, or at least it is certainly wrong to perform an act that will probably be injurious to another person (see 713). Moreover, everyone can see that the public good would suffer greatly, if occult compensation were permissible when the existence of a debt is uncertain. Hence, if it is only probable that one sold goods to another person or that another person has not yet paid for services received by him, occult compensation must be avoided.

(b) As to pure doubt of law, the question is controverted. Some think that it also must be excluded, since the possessor should not be deprived of possession unless it is certain that there is a right to do this. Others think that occult compensation may be used in spite of a mere doubt of law, if the doubt concerns only the mode of making the compensation, or if the probability in favor of the creditor is so strong that a judge could conscientiously decide for him against the possessor. Examples of doubts of law here are three cases that are in dispute among authors, namely, whether one may take money as compensation for defamation that will not be repaired by restoration of fame (see 1802, 1803), whether one may deny reparation for defamation when one has been defamed by the other party and has not received restitution, whether one has rights to a legacy of which one is deprived on account of a mere informality in the document. In these cases the right is held by some authorities to be probable, but the decision in a particular instance should be made only on the advice of a learned and conscientious person, since the matter is very complicated and there is great danger of self-deception.

Some Cases in Which There Is a Strict Right to Compensation.—(a) Employees (i.e., servants, workingmen, artisans, officials, etc.) have a strict right when they are injured by the employer’s non-observance of the contract (e.g., the stipulated salary is not paid; unjust subtractions are made from the salary, as by fines for the inadvertent and infrequent breaking of tools, etc., about which there was no agreement in the contract; labors not contracted for are exacted), or when an unjust contract is imposed on them (e.g., they are induced by force or threats to accept less than a living wage; advantage is taken of their grave necessity to wring from them agreement to such a wage).

(b) Merchants have a strict right when a debt which they cannot collect is certainly owed them, or when they sold below the minimum just price, because forced to this unjustly, or because they made a mistake in charging. They may compensate themselves by diminishing weights or measurements.

(c) One has a right to compensation who has been condemned under a sentence manifestly unjust, because the law is certainly unjust or because the judge clearly gave a wrong decision in a matter of fact (e.g., he erroneously presumed that a debt had been contracted, or that it had not been paid).

Some Cases in Which There Is No Right to Compensation.—(a) Employees have no right to compensation for subtractions from their salary, if they culpably injure the property of their employer, or if they agreed to such subtractions; nor for the smallness of their wage, if they freely accepted it (e.g., if they regarded it as a favor to be employed, and the employer did not really need them), or if it is made up for by presents, board or lodging, opportunity for good tips, etc.; nor for unusual labors, if they hired themselves out for general service (unless they are asked to perform work of an entirely unforeseen kind, such as a very perilous mission), or if they undertook these labors freely without the knowledge or wish (express or tacit) of the employer.

(b) Merchants have no right to compensation for goods sold by them below the minimum just price, if they freely agreed to sell at that price.

Children and Employees and Compensation.—Some special questions arise for consideration in case of parents who employ their own children, and of employers who are forced to underpay on account of the dishonesty of their help.

(a) Children who work for their parents and who are entitled to a salary, by agreement or from the law, have the same rights as other employees, but injustice against them would be less frequent. In this country the father has a right to the services and wages of his unemancipated child, but the child becomes independent of the father when it reaches the age of majority or when the father relinquishes his right.

(b) Employees who are underpaid because the employer is cheated by his help have the right to occult compensation, if they are forced to take less than a living wage (1932); otherwise this is not permissible, unless it be certain that the employer is not unwilling that the honest employees receive more than their pay. In practice, on account of the great peril of injustice, it is advisable that such workers seek better pay through their organizations or else look for employment elsewhere.

Conditions Required by Legal Justice for Occult Compensation.—(a) Occult compensation must not be used if payment can easily be obtained through suit at law or agreement; for the order of law and the public welfare require that one should not have recourse to the extraordinary means of occult compensation if ordinary means will suffice and not cause notable difficulties. But as a rule it seems this obliges only under venial sin, since ordinarily the departure from normal procedure in this matter is not seriously detrimental to public morals or order; and it does not impose a duty of restitution, since he who takes only what belongs to him does not offend against commutative justice. Indeed, if it is certain that other means will be futile (e.g., because one has not sufficient evidence to win or because the decision would he biased) or harmful (e.g., because great dissensions will be aroused, or heavy expenses incurred in litigation), occult compensation is not even venially unlawful.

(b) Occult compensation, according to law, should not be used by a bailee, for he has a lien for his services and proper expenditures in caring for the object bailed, but not for any other debt the bailor may owe him (Bolles, Handy Law Book). This is obligatory at least for the external forum.

Some Conditions Required by Charity for Occult Compensation (see 1165, 1236, 1483).—(a) Charity towards the Debtor.—The creditor should see, when possible, that the debtor suffers no loss by occasion of the compensation. Hence, in order to spare the debtor the evils of a bad conscience in reference to the debt or of a second payment of the debt, the creditor should, if possible, inform the debtor that the debt is cancelled or that payment is not expected.

(b) Charity towards Third Parties.-The creditor should, if possible, prevent any trouble or loss to others that might be occasioned by the compensation, such as suspicion of theft that might fall on servants.

621. • Principles. I. Hidden compensation can sometimes be just and lawful, if it does not lack the required conditions, that is, if no injury is done to the debtor, nor any disturbance of the order of right follows, nor any disturbance of the Republic. But these three things can be had. And 1. no injury is done to the debtor; for by hypothesis in such compensation you accept only that which is certainly yours, or what is owed to you from strict justice. 2. There is no disturbance of the order of right, since it is supposed either that a judge cannot be approached, at least without notable inconvenience, or that he is unable to restore his right to the injured party. For that is not said to be omitted which would be sought in vain. 3. There is no disturbance or damage of the Republic; for provision is sufficiently made for it by cautions to be placed in the conditions. - Thus St. Lig., n. 521. - Lacroix, n. 959, and also Antoine, c. 5, q. 9, where he says: It is the common sentence; and Collet, de Iustitia, p. 3, c. 4, where he says: Thus nearly all theologians.

623. • Questions. Q. 1. Whether servants judging that their salary is below the work furnished by them can use hidden compensation?

Resp. Negatively, at least generally speaking, with the common sentence ⁵. It is evident 1. from proposition 37 condemned by Innocent XI: Domestic male and female servants can secretly steal from their masters to compensate their labor, which they judge greater than the salary which they receive. 2. From reason; for they would act against the agreement, since they consented to the lesser price, and on the other hand nothing is owed to them except the price concerning which there was agreement. Besides, if this were lawful, the way would be opened to innumerable thefts; for servants would easily persuade themselves that their wages are less than just; thus no security would remain for masters. - The same must also be said, from parity of reason, of all workmen, craftsmen, and merchants who would wish to have recourse to compensation under the pretext of the lower price at which they hired out their works or sold their merchandise.

⁵ P. Gury in another edition (year 1865) had placed this response under the same question entirely: Resp. Affirmatively, if the due conditions are present. But the case can happen if the servant is compelled by force and fear to consent to an unequal price (namely, unjust); if compelled by necessity he consented to it, provided nevertheless that the master would not have found other servants at the same low price, yet a just one, or did not accept this one asking from mercy; if he is burdened by undue works. Yet the danger which can arise from fallacious judgment must be guarded against. Therefore proposition 37 was deservedly condemned by Innocent XI, which thus generally established: Male and female domestic servants can secretly steal from their masters in order to compensate their labor, which they judge greater than the salary which they receive. The reason of the condemnation of this proposition is, namely, that servants are generally very prone to deciding wrongly that the salary is below the work furnished by them. Thus in that Edition.

Moreover, it is easily plain that of each response, although contrary in appearance, there is in reality one and the same doctrine. But the inconvenience of this apparent contradiction could easily have been avoided if the question had been proposed in other words than those by which the condemned thesis is expressed; and it would have been ready to respond that it is lawful for servants to do what is lawful for all, namely to use hidden compensation when the due conditions are not lacking. Nor does the condemnation of that thesis stand in the way; for it cannot be said that Innocent XI wished by that condemnation to oblige servants to bear damage contrary to the laws of justice, when the crime of wages unjustly denied to workers is counted in catechisms among those things which as it were by crying out provoke against themselves the anger of almighty God. That thesis was deservedly condemned, not only because servants very often judge badly that more is owed to them than what they agreed upon from the beginning, but also because for lawful hidden compensation other conditions besides the wounding of justice are required.

I said, at least generally speaking, because not a few except: 1. if the servant is compelled by force or fear to consent to an unequal price. 2. If compelled by necessity he consented to it, provided nevertheless that the master would not already justly have found other servants at the same low price, or did not accept this one asking from mercy. 3. If unwillingly he is burdened with undue works ⁶.

⁶ Thus St. Alphonsus (lib. 3, n. 622): A servant, when he is compelled by his poverty to agree thus (namely at less than a just price), then does not yield his right voluntarily, but by compulsion, and therefore his poverty cannot excuse the master so that he does not pay him at least the lowest wage. But when a servant compelled by necessity agrees for a small price (namely below the lowest), he will be able to compensate himself up to the lowest price; as Viva says with Lessius, Suarez, Molina and Dicastillus, and others very commonly. Yet this holds unless the master would already justly have found other servants for the same small price (that is, within at least the lowest limits of the just price); or unless the servant had been offered of himself, and the master from pity, or need, used him.

Q. 2. Whether at least a servant, increasing the works owed, can compensate himself?

Resp. 1. Negatively, if he acts thus by his own choice, because then he is judged to give his work gratis in order to conciliate the favor of the master to himself.

Resp. 2. Affirmatively, if he increases the works from the will of the master, whether expressed or tacit, because then the workman is judged worthy of his wage by right. - St. Lig., n. 523. - But what compensation is just can sometimes be left also to the judgment of the servant, if he is God-fearing and prudent, and danger of self-love is absent; yet this will happen very rarely. - St. Lig., n. 524.

624. • Q. 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 hidden compensation?

Resp. Affirmatively, because the sentence of the judge is unjust, as founded on a false presumption of fact, and therefore cannot oblige in conscience. For although one must always stand by the sentence of a judge in a matter of law, unless it is a matter of an evidently unjust law or sentence; nevertheless otherwise, scandal being excluded, if the judge certainly errs concerning a fact which from error he thinks true. Moreover, the judge does not have the faculty of transferring dominion; nor can he who obtained a favorable sentence, even when the error has been detected, keep the thing adjudged to himself. - Thus commonly Moullet, t. 1, p. 491.

454. Principle: In general hidden compensation is illicit; but in certain cases it can be tolerated, if the due conditions are present.

1. In general it is illicit, as being full of dangers; for if it were permitted to each one to vindicate his own rights, which he thinks have been injured by another, without recourse to magistrates, a broad way would be opened to thefts, since for the most part men enlarge their own rights and lessen those of others. Therefore in general those who think themselves injured ought to have recourse to judges.

455. 2. Yet when this recourse is hardly morally possible, hidden compensation, clothed with the due conditions, can be tolerated. For justice is not injured when from another's goods only that is taken away which is owed from strict justice; moreover public order is not disturbed if this is done very rarely, from a grave cause, when another way of recovering one's own goods is lacking.

456. The required conditions are numbered as five:

(a) That the debt be from strict justice, and not from charity or from a certain fittingness; thus a servant does not have a right to compensation to whom the master had promised, from gratitude, a certain sum of money which in fact he did not give; nor also a non-necessary heir, who has no part in the testament.

(b) That it be morally certain; for in doubt the condition of the possessor is better; otherwise, since men are prone to exaggerating their own rights, a way would be opened to injustice.

(c) That the debt cannot be recovered otherwise without grave inconvenience, e.g., without many expenses or danger of exciting enmities.

(d) That the damage of the debtor or of a third party be guarded against: of the debtor indeed, by employing means lest he pay twice or remain in bad faith, thinking that the debt was not paid; which can be done by a fictitious condonation; - of a third party, by avoiding lest another, e.g., a servant, be accused of theft.

(e) That the thing which is taken be of the same value as the thing owed, and, if it can conveniently be done, of the same nature and species.

457. Corollaries. (A) Servants or workers who have freely agreed about some wage cannot use compensation on the pretext that the work furnished is greater than the promised salary; for the pact is to be stood by, unless it is evidently unjust. Hence Innocent XI condemned this proposition (37) as scandalous and pernicious: "Male and female domestic servants can secretly take from their masters to compensate their service, which they judge greater than the salary which they receive."¹ - But otherwise it must be said if, compelled by force, fear, or necessity, they agreed about a salary which, according to the estimation of prudent men, is less than just, as will be explained below where the hiring of services is treated.

¹ Denzing., n. 1054.

(B) If a servant of his own accord increases the services owed, he does not acquire a strict right to a greater wage, nor therefore to compensation, because he is judged to do this gratuitously in order to conciliate to himself the favor of the master. But if he furnishes this from the express or tacit will of the master, he is worthy of a greater wage; therefore, if this has not been paid, and the servant has used compensation, he is not to be compelled to restitution.²

² According to Sabetti (n. 411, q. 2), those who are in charge of cars drawn along railway routes (conducteurs d'omnibus de tramways, car-conductor) can use hidden compensation, if, in the judgment of God-fearing men, the payment which they receive is truly unjust. - This indeed can be tolerated when it is certain that the matter is so; but it is much more expedient that these and other workers form associations (syndicats professionnels, labor-unions) and, by united strength, obtain a just salary; otherwise, little by little, a way is opened to frauds and thefts.

458. (C) Merchants who freely sell below the legitimate price cannot use hidden compensation, namely by unjust weight or measure; otherwise, if by error, force, or fear they delivered a thing at too cheap a price.

NOTE. In practice, confessors should not advise hidden compensation, since it is full of dangers; but, if penitents have used it under the conditions explained above, they should not be compelled to restitution.

And let these things suffice concerning the injury of right: now we must treat of the reparation of the same.

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.

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.

XVIII. Whether one who by occult compensation filches what is owed him may swear that he has received nothing?

Fr. Thomas Tamburini, Book VIII, tract 2, chap. 4, § 1, no. 1, answers: “That he is not a thief in conscience, nor does he sin, nor does he incur the excommunication which perchance is imposed against thieves; and that he may swear even before a judge that he has received nothing, understanding that which was not owed him (if it be already certain to him, as today it is among all); even if the thing which he takes had been consigned to him by the debtor on deposit. See Molina, Lessius, de Lugo, and others soon to be cited, to whom add Dicastillo.”

XX. Fr. Dominic Viva, in his Tract on Theology, upon this proposition 57, no. 7: “What is proscribed in this thesis is that servants may secretly compensate themselves for what they judge to be owed them in justice by way of wages. Therefore for the making of this occult compensation there is required the judgment of a man learned and at the same time expert.”

That the seizure of spoils in a just war is not unlawful is proved by the Holy Doctor on chapter 10 of Wisdom, in these words: The just took the spoils of the wicked, because it is done by public authority.

But to seize another's goods at God's express command is no sin. Thus the Hebrews took away the riches of the Egyptians, Exodus 12, as is commonly noted with St. Bonaventure, in sermon 6 on the ten commandments, and in 2 dist. 40 dub. 2, where, however, many note that the Hebrews had a right to those goods on account of the wages withheld for their labors spent in building the cities, as Clement of Alexandria teaches, book 1 of the Stromata, Epiphanius in the Anchoratus, St. Thomas 2. 2. quaest. 66. art. 5. ad 1., where Salon, Aragon, Valentia, tract. 3. disp. 5. quaest. 10. puncto 5., Gabriel in 4. dist. 15. quaest. 3. art. 1., Sotus l. 2. de Iust. quaest. 3. art. 8. and lib. 5. quaest. 3. art. 3. ad 1., Melchior Cano lib. 2. de locis, cap. 4., Sayrus Lib. 9. cap. 14.

From this a doubt can arise: Whether by private authority men can seize their own wages; And whether anyone else can take away a thing unjustly detained by another.

This question is treated by Altisiodorensis summa, tract. de restitut. quaest. 6., Alensis 4. part. quaest. 24. memb. 5. art. 3., the Gloss on the chapter Ius Gentium, Richardus 4. dist. 15. quaest. 7. art. 1. ad 2., Paludanus there, quaest. 3. dist. 3. art. 3. and quaest. 4. art. 2., St. Antoninus part. 2. tit. primo, cap. 15., Sylvester V. bellum 1. quaest. 9. and V. furtum, quaest. 12., Angelus there, Adrianus quodl. 6. art. 1., Castro lib. 2. de potestate leg. poen. cap. 10. argument. 4., Cajetan 2. 2. quaest. 66. art. 3. and 5., Sotus lib. 5. de Iust. quaest. 3. art. 1. and art. 3. ad 1., John Medina Cod. de restit. quaest. 3. causa 12., Navarrus Man. cap. 17. n. 111. and cap. inter verba 11. quaest. 3. conclusione concl. 66. num. 792., Covarruvias lib. 1. var. resol. cit. and num. 14., Sebastianus Medices in summa, titulo 6. quaest. 129., Salon 2. 2. quaest. 66. art. 5. controv. 2., Aragon there, Petrus Navarrus Lib. 3. de restit. cap. 1. part. 4. disput. 8. num. 384., Valentia disp. 5. quaest. 10. puncto 5., Lopez part. 2. Instruct. cap. 8., Joseph Angles quaestio quid sit liberare fustisito, art. 2. diffic. 27. disp. 15., Toledo lib. 5. summae, cap. 15., Garbo de restit. quaest. 85. dub. 2., Corduba summa, quaest. 111. et Lib. 1. qq. quaest. 35., and others in Sayrus l. 9. cap. 14., Fagundez lib. 7. cap. 30.

I say, therefore, first, that it is not lawful to take away one's own property in this way, if it can be obtained by another, more honorable means; for although no injustice is committed with respect to the thing received, still it is committed with respect to the manner, for they make justice for themselves to the prejudice of the public judgment of right. Injury is also done to the one holding the thing, if he is a just possessor, as a depositary; for thus you expose him to the danger of having to pay twice for the thing, and to other inconveniences, as St. Thomas says, 2. 2. quaest. 66. art. 5. ad 3.

I say secondly that, certain conditions being in place, this is lawful.

The FIRST is that the thing be owed in justice. So Corduba with Navarrus and Sayrus.

The SECOND, that this debt be liquid.

The THIRD, that he receive no more than is owed to him.

The FOURTH, that he cannot recover that good by order of law, or out of court, without grave loss.

The FIFTH, that it be likely to him that asking the debt from the debtor will profit him nothing.

The SIXTH, that no grave scandal follow.

The SEVENTH, that he take care to admonish the debtor, or the heirs, that the debt is now to be paid.

These conditions therefore being in place, since no injury is inflicted on anyone, and the thing is reduced to equality, it will be lawful to make such compensation for oneself, as Sayrus says, num. 8.

The same thing, I said, many understand to be able to be done even by violent seizure, unless an immense disturbance in the Republic follow. Others, however, deny this, because a private person may not punish another, as is gathered from St. Thomas, 2. 2. quaest. 66. art. 8. Therefore those who seize in this way are punished by Princes.