Occult 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."

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,

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.

Compensation.-Compensation is of two kinds, strict or legal and wide or extra-legal.

(a) In a strict sense, compensation is counterclaim, or the comparison of the debts of two persons to one another with a view to the cancellation of one or of both debts. This method of extinction of debt is allowed by law in order to reduce the amount and expenses of litigation. It is known as recoupment or offset when a defendant brings a cross-action against a plaintiff for non-fulfillment by the latter of some part of the contract in controversy, and as set-off when the defendant introduces the debt owed to him over against the debts sued for by the plaintiff. Counterclaim is just when no injury is done to one party (e.g., it would be unjust to keep the horse of Titus which you had borrowed, simply because Titus owed you a debt equal to the value of the horse, for the horse might be worth more to Titus); it is legal when recognized by the law (cfr. 1797, 1798).

(b) In a wide sense, compensation is the summary recovery by a creditor of the thing or the debt owed him by the debtor. The recovery is summary in the sense that the creditor does not go to law, or proceed according to law, but takes from the debtor either openly (open compensation) or secretly (occult compensation) what is owed.

Lawfulness of Occult Compensation.—(a) Ordinarily, or per se, it is not lawful; for it contains such evils as disregard of due process of law, scandal, infamy, public disturbance, the menace that the common good will be harmed by frequent abuse, the danger that the debtor will suffer loss through a second payment of the same debt, etc. Innocent XI condemned the proposition that domestic servants may practise occult compensation when they decide that their services are worth more than the salary they are receiving (Denzinger, n. 1187). (b) Exceptionally, or per accidens, it is lawful; for under certain conditions it offends neither public nor private welfare and it is necessary for the vindication of a right. Just as the natural law gives authority to occupy the goods of another in case of extreme need, so does it justify occult compensation in the special cases just mentioned.

Unlawful Occult Compensation and Restitution.—Does unlawful occult compensation oblige one to restitution?

(a) If the compensation is not only unlawful but also injurious (e.g., a servant takes what is not due her under the pretext of compensation), it is not rightly called compensation, but is really theft, and restitution is due. (b) If the compensation is unlawful but not injurious (e.g., a servant takes what is really due her, but she could have obtained it by asking for it), there is no theft or duty of restitution, since the property of another was not stolen.

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.

The Lawfulness of Open Compensation.—(a) If one’s property is being stolen or carried away, it is lawful to protect or recover it by force; for this is only just defense.

(b) If one’s property has already been carried away but is still in being and in a safe place, legal justice requires that one seek redress from the courts. But it does not seem a serious fault if one recovers goods by using moderate force, since the property is one’s own and the public manner of seizing it enables the law to take cognizance of the case. American law recognizes with certain restrictions the rights of recaption and of entry whereby a person takes possession without legal process of goods unlawfully taken or withheld from him (Robinson, Elementary Law, Sec.239, 240).

(c) If a debt owed to one is denied by the debtor, it is not lawful to take payment from him by force, since this is against the law and productive of scandal and disturbance, and moreover one is not the owner of the goods which one thus takes by force.

Notanda pro Confessariis.—(a) Ante factum, rarissime consulenda est occulta compensatio, tum quia ut plurimum illicita est (1928) utpote periculo injustitiae, scandali, perturbationis plena, tum quia lex civilis non solet eam ut remedium agnoscere sed potius ut furtum habet. Publice de occulta compensatione non expedit loqui, et praestat ut qui privatim de ea interrogentur, etiam datis conditionibus ad liceitatem necessariis, per modum tolerationis tantum annuant.

(b) Post factum, facilius in favorem utentis compensatione judicari potest, in ordine ad restitutionem, sed prudenter, et quasi evasive loquendum, ne praxis ita agendi ut per se et generaliter licita approbari videatur.

What is occult compensation? - Occult compensation is nothing other than an occult equivalent recovery of one's own thing, the occult reparation of damage unjustly suffered in one's own goods. This compensation is usually called extra-legal, to distinguish it from legal compensation, which touches certain particular cases, when two persons, debtors to each other, each receive in payment the thing owed to the other; which compensation, by force of the law itself, by full right, has place. Legal compensation obtains even when the debtors are unaware, up to the concurrent quantity of each debt, provided nevertheless that both are of the same nature and goodness and can be exacted immediately. But a delay which is conceded to the debtor for paying does not prevent compensation. - But legal compensation is not admitted 1. when restitution is sought of a thing of which the owner was unjustly despoiled; 2. when restitution of a deposit or loan is sought; 3. when there is question of a debt whose title has its origin from support payments which do not fall under seizure, such as wages, pensions, etc.; 4. when the creditor has renounced the right of compensation. But renunciation cannot be made to the damage of other creditors or sureties. C. I. 1285 seqq.; C. G. 1289 seqq.; C. A. 1438 seqq.; C. H. 1195 seqq.; C. B. 273, 274, 387 seqq. Cf. here 966.

Whether occult compensation is licit? - Occult compensation, with certain conditions concurring, is licit according to the common opinion of the doctors. The reason is that it is nothing other than a just defense from injury, by which the debtor continually vexes you by unjustly retaining your thing, or that to which you have a right from justice.

What are the conditions required for the lawfulness of occult compensation? The conditions commonly required that occult compensation be made justly and licitly are: 1. That the spiritual and temporal damage of the debtor be prevented; namely, lest he remain in an erroneous conscience and in sin, lest he again restore what he now does not owe; by admonishing him of the cessation of the obligation, by feigning, e.g., condonation, etc. Yet one is not held to this from justice, but only from charity, which does not oblige with grave inconvenience. 2. That the grave damage of another be prevented, for instance if suspicion of theft threatens another. To this also one is not held from justice, but only from charity, since he is the cause of that damage not per se, but only per accidens. 3. That the thing which is accepted in compensation from the debtor is not another's; because otherwise you would not exact the debt from the debtor, but from another who owes nothing. 4.

That you cannot recover the debt otherwise, by asking it from the debtor, or before a judge, or certainly not except with great difficulty, expenses, lawsuits, annoyances, etc. The reason is that one cannot regularly by his own authority despoil the possessor, since this belongs to the judge, or magistrate, having public authority. Besides, the public good requires that no one declare right for himself where recourse to a judge is easy. St. Thomas, 2. 2, q. 66, a. 5 ad 3.; C. B. 227.; C. L. 2535 seqq. 5. That compensation be made, as much as can be done, in a thing of the same species as that which was owed. For otherwise the debtor, without his consent, is altogether unjustly compelled to exchange his own thing.

But if it cannot be made in a thing of the same species, it can indeed be made in another, but with lesser detriment to the debtor, as much as can be done. - 6. That the debt be certain; for in doubt the condition of the possessor is better, and therefore here he would be unjustly despoiled of his own thing. - Lugo d. 16, s. 5.; Ithur. Cas. 3, n. 14, 15.; L. 521.; St. Thomas, 2. 2, q. 66, a. 5 ad 3.; E. M.

Whether compensation can be made by retaining a thing handed over to the creditor in deposit or on loan? Many deny it, relying on the positive dispositions of the law. C. I. 1289.; C. G. 1293.; C. H. 1200, 1747.; C. A. 1440.; L. ult. § 1. C. de Compensationibus; C. Bona fides de Deposito. "Yet others more probably teach that those laws proceed only in the external forum, in which it is presumed that the debt could have been recovered by another way, and the faith of deposit preserved.... The reason is that the fact that the thing has been deposited with you does not make it more its owner's than before, nor does it oblige you to defend it against the true owner, who wishes to vindicate it, or against him who has a true right to receiving it, if that right is certain to you: indeed you ought to give it, if damage threatens you from another source. Therefore similarly you will be able to take it for yourself, if you have true dominion of it, or a true right against its owner for recovering your debt." Lugo d. 16, n. 89.; Gousset in a. 1293.; C. B. 273, 274.

Whether, with impossibility or grave inconvenience of recurring to a judge excluded, someone sins gravely against legal and commutative justice by secretly compensating himself? Resp. to the 1st: Negatively, generally speaking, because ordinarily, from this inversion of order, grave scandal or grave disturbance of the republic does not follow. Resp. to the 2nd: Negatively, if you accept your own thing, which still pertains to your dominion, or if you accept it in an equivalent in fungible things, as money for money, wheat for wheat, etc., because in these the debtor is not compelled to undergo any burden besides that to which he was held. But affirmatively, speaking of itself, if you accept a thing of another genus, e.g., a horse for money, without cause and necessity; because in the case you compel your debtor to sell the horse, and therefore to undergo a grave burden besides that to which he was held. But you have no right to impose this new burden upon him; yet per accidens you can permit it to follow, where a sufficient cause and necessity are present for recovering your own thing in the way you can. For then the debtor ought to impute this other burden to himself, since he does not pay what he was held to pay. Lugo d. 16, n. 91.; C. A. 1413, 1414.

Whether a creditor can compensate himself before the time, for a future debt? - Resp. Affirmatively, if there is a true moral danger that the debtor will not satisfy his debt at its own time. "The reason is that defense by natural right is licit not only when you are already actually offending me, but also when you are prepared to offend me, and I cannot escape otherwise than by anticipating." Yet, "if some damage comes to the debtor on account of the anticipation of compensation... all of it must either be diminished from the principal debt, or restored to the debtor. The reason for this is that no one can be punished for a future delict before it happens." Lugo d. 16, n. 93.

Whether someone can compensate himself with only a right to a thing? Resp. Affirmatively. For by a right to a thing, from a strict obligation of justice in another, although immediately and directly the person is obliged, nevertheless mediately and indirectly the thing itself is obliged to you. Wherefore, as you can licitly compel the person to pay you by recurring to a judge, so also you can licitly compel him to pay you by taking the thing which is owed to you, when recourse to a judge is impossible. And indeed the matter is evident, that there is no injury of commutative justice if you take for yourself what another from the same justice owes and does not wish to give. - L. 614.; Lugo d. 16, n. 97.

Whether occult compensation can licitly be made when only probability of right stands? Ithur. Cas. 3, n. 11, has this: "Whenever the opinion has been equally probable for each party, or, as frequently happens, one's own is more probable to each, compensation is made justly not in the whole, but certainly in half of the debt." The 1st reason is because in such a case "a judge can adjudicate the whole to neither, but ought to divide the thing between the litigants....

But it is licit for no one through occult compensation to acquire more than what could be adjudicated to him by a judge after allegations and proofs." The 2nd reason is because "whenever the right to the same thing is equal, the advantage of each party ought to be equal, justice so requiring, whose office it is to consult equality." But Cardinal Lugo, after reporting the common opinion which requires a certain right for compensation, then adds these things: "This doctrine, if it is understood as it sounds, is difficult, nor does it seem to be constantly retained by its own authors....

I will add some examples: first, concerning him who has been defamed by Peter, it is asked whether for the reputation which Peter does not wish or is not able to repair for him, it is licit for the defamed person to make compensation by denying monies which he owed to the same Peter. Lessius responds that he can, because the opinion is probable which teaches that infamy must be compensated by money when it cannot be restored in its own genus... although the truer opinion denies this.... Secondly, when two have mutually defamed each other, they can, when the damage is equal, compensate for themselves, so that neither is held to restore as long as the other does not wish to restore.... Which compensation in that case is founded only on a probable opinion, since the contrary is also very probable. Thirdly, he who ought to have a legacy from a less solemn testament, since it is a probable opinion that those legacies are owed in the forum of conscience, although the contrary opinion is sufficiently common and probable, can nevertheless retain the legacy, or accept it anew, or secretly compensate himself." Hence Lugo generally concludes: "it seems probable that a creditor, before the matter is brought to judgment... can secretly compensate his debt to himself.... Reason also seems to prove this, because, notwithstanding the possession of the debtor, the judge would pronounce sentence, or certainly could pronounce it for the creditor, by embracing the probable or more probable opinion which favors him.... Why therefore will the creditor himself, when he cannot recur to a judge without grave inconvenience, not be able to embrace the same opinion which the judge ought or could have embraced, and compensate the debt to himself?"

But the same Lugo notes that although a judge in judging is held to follow the more probable opinion, nevertheless the creditor in occult compensation does not seem to be obliged to this, because the reason on account of which especially a judge cannot do this is that "from office and from an implicit pact toward the Republic he seems to be held to inquiring into the truth as much as he can, which reason does not militate in the creditor, who is held by no such pact toward the Republic. Yet concerning this I wish to assert nothing; indeed I willingly abstain from final judgment concerning this whole point about compensation to be licitly made with an opinion only probable." d. 16, n. 94 seqq.; L. 521, 544, 700, 817, 928.; l. 1, n. 30. But the reason of the common opinion is: 1.

The danger in this matter of easy deception; hence, practically speaking, there is present a grave danger of injuring another's rights. 2. Because if the other truly possesses the thing in good faith and by a title at least reasonably presumed, he now has a certain right at least of detention of the thing, and consequently he cannot be despoiled of the thing until there is certainty concerning another's right and dominion of the thing. - Hence, as is clear, when there stands only probability of fact from which a right arises, it is in no way licit to despoil the peaceful possessor of his thing.

620. • A twofold compensation is distinguished, legal and extra-legal. The former has place when two persons are mutually debtors to each other, and one reserves to himself the thing owed to the other: thus, for example, if I owe you 100 francs for cloth, and you owe me 100 for wine, each debt is extinguished by compensation. This compensation is manifestly lawful, and is confirmed by the law itself (C.C. 1289 and following). The latter, which is called hidden compensation, is the recovery of one's own thing through the occupation of another's. Of this alone we must treat.

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.

622. • II. But the required conditions are the following: 1. That the debt be certain, at least morally ¹. For in doubt the principle is valid: Better is the condition of the one possessing ². Therefore in doubt compensation is illicit and unjust.

¹ Cardinal de Lugo, after he had disputed much concerning this matter, thus concludes (De Iust., disp. 16, n. 102): Therefore when the proofs concerning the fact on the part of the plaintiff, although they are not evident, are nevertheless such that, in the judgment of the Doctors, the judge ought to judge for him notwithstanding the proofs of the adversary, he himself, before the matter is brought to judgment, with the other conditions required for compensation concurring, will be able to embrace the probable opinion, so that he may compensate himself.

Nevertheless (ibid., n. 106) Lugo adds that he prefers to abstain from rendering the last judgment concerning this matter; because, he says, although in particular cases the Authors seem to admit this, as we have seen (n. 95), nevertheless in common, and while they treat the question in its proper terms, they seem commonly to deny it, because perhaps something occurred to them by which our arguments placed above could be dissolved. But perhaps that sentence of Lugo is not far from the common one; for since he supposes that in the judgment of the Doctors the judge would not have judged otherwise, now you have that species of probability which in ethics is equivalent to moral certitude.

² Elsewhere we warned (see above, n. 79, q. 5) that this saying has less bearing when it is a matter of a probable opinion. Otherwise, unless the matter were certain, the judge could not bring a sentence for either party which does not possess, which is false.

But what St. Alphonsus has (lib. 3, n. 521) must not be passed over: Although certainty of credit is required for compensation, nevertheless very many grave Authors admit that compensation can be made with a credit only probable in three cases, namely when there is compensated 1. reputation with money, 2. infamy with infamy given, and 3. a legacy left in a non-solemn testament.

2. 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 recourse to a judge, then by compensating himself he does injury to public authority, and therefore offends against the order of right.

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

4. That damage to the debtor be guarded against, namely by taking care that the debtor is not exposed to the danger of paying twice, if perhaps he is going to restore. Hence if that case is foreseen in some way, he must be warned in some way, for example, by a fictive renunciation or remission, etc. ³. 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 there is no probable hope of recovering the debt ⁴. - St. Lig., n. 521.

³ In practice these things will be able to be done with difficulty in such a way that some suspicion of compensation having been made will not often enter the mind of the debtor; and grave inconveniences could thence come upon the creditor, for example, if it is a matter of a servant. Therefore, if these are feared from the warning, this can be omitted; and if any damage should thence befall the other, let him impute it to himself and his own inequity; for the creditor has used his own right.

⁴ Understand: where there is no probable hope of recovering one's own without some grave inconvenience. For although the hope were not only probable but plainly certain of recovering one's own through recourse to a judge, nevertheless this recourse would involve the creditor in grave difficulties and vexations of lawsuits, enmities, expenses, etc.; and therefore he would not have to be prohibited from hidden compensation, as the Author himself also warns below.

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.

625. • Q. 4. Whether he sins gravely and against justice who compensates himself without first having recourse to a judge?

Resp. 1. He does not sin of itself against justice, provided he accepts only as much as is owed to him; nor therefore is he held to restitution. The reason is plain, because with this compensation having been made, equality is restored between him and the debtor. I said, of itself, because sometimes a detriment could follow for the debtor from the privation of some determined thing, for example, a horse, a precious thing, etc. - Lugo, d. 16, n. 19, and others.

Resp. 2. Nor does he sin gravely, generally speaking; because ordinarily grave scandal or grave disturbance of the republic does not follow from this inversion of order. - Lugo, ibid.

Resp. 3. He sins in no way if recourse to a judge is difficult, if there is danger of scandal, or extraordinary expenses, etc.; because then recourse is morally impossible. - See Casus, n. 573 and following.

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.

e) As the appropriation of the property of others is unjust only when it is done against the reasonable will of the owner (rationabiliter invito domino), the taking of things in extreme necessity and occult compensation (v. infra, pp. 366 sq.) are not thefts.

A theft committed in extreme need is the appropriation or use of the property of another by a person who needs that property to save his life or something nearly as valuable as life (e. g., the integrity of the body or liberty).

He who in a state of extreme necessity takes as much of another’s goods as he actually needs, either for himself or for others in the same predicament is not guilty of theft and not bound to make restitution, provided he is actually indigent and has no reasonable hope of ever becoming prosperous.¹⁹ He is merely exercising a right granted to him by the moral law of nature, which ordains that in extreme necessity all things are common property. In such a case, therefore, the consent of the owner may be presumed, and if he protests, his protest may be disregarded as unreasonable, and hence there can be no theft because one of the essential notes of theft is lacking.

¹⁹ Busembaum, Medulla Theol. Mor., l. III, tr. 5, c. 1, dub. 1, n. 2: “He who takes from another as much as is necessary for himself or another placed in extreme necessity neither steals nor is bound later to restore what has thus been consumed, provided he was needy in fact and in prospect.”

St. Thomas explains this with his accustomed lucid- ity as follows: “Things which are of human right cannot derogate from natural right or divine right. Now, according to the natural order established by divine Providence, inferior things are ordained for the purpose of succoring man’s needs by their means. And therefore the division and appropriation of things which are based on human law, do not preclude the fact that man’s needs have to be remedied by means of these very things. Hence, whatever certain people have in superabundance is due, by natural law, to the purpose of succoring the poor. . . . Since, however, there are many who are in need, while it is impossible for all to be relieved by means of the same thing, each one is entrusted with the stewardship of his own things, so that out of them he may come to the aid of those who are in need. But if the need be so manifest and urgent that it is evident that the present need must be remedied by whatever means be at hand (for instance, when a person is in some imminent danger, and there is no other possible remedy), then it is lawful for a man to relieve his own need by means of another’s property, by taking it either openly or secretly; nor is this, properly speaking, theft or robbery.” And again: “It is not theft, properly speaking, to take secretly and use another’s property in a case of extreme need, because that which a man takes for the support of his life, becomes his own property by reason of that need.”²⁰

²⁰ St. Thomas, Summa Theol., 2a 2ae, qu. 66, art. 7: “Those things which are of human law cannot derogate from natural law or divine law. Now, according to the natural order established by divine providence, inferior things are ordained so that by means of them human need may be relieved. And therefore the division and appropriation of things proceeding from human law does not prevent human need from being relieved by means of such things. And therefore the things which some possess in superabundance are, by natural law, due for the support of the poor. . . . But because there are many who suffer need and it is not possible from—” “the same thing to relieve everyone, the stewardship of his own goods is entrusted to each person’s discretion, so that from them he may relieve those suffering need. But if necessity is so evident and urgent that it is manifest that the present need must be relieved from whatever things are at hand (for example, when danger threatens a person and he cannot otherwise be relieved), then a person may lawfully relieve his need from another’s goods, whether taken openly or secretly, nor does this properly have the character of theft or robbery.”—Ibid., ad 2: “To use another’s property secretly taken in a case of extreme necessity does not have the character of theft, properly speaking, because through such necessity that which one takes to sustain one’s own life is made one’s own.”—Ibid., ad 3: “In a case of similar necessity a person may also secretly take another’s property in order to aid a neighbor who is thus in need.”

f) The conditions under which a man may make use of this right are the following:

α) His own need, or that of the person for whom he takes the property, must be extreme (necessitas extrema), or at least very grave (necessitas gravissima sive quasi extrema); β) He must have no other means of livelihood; γ) The owner of the property in question must not be in equal need or likely to be subjected to equal need by the taking away of his property; δ) The needy must have the intention of taking only what he absolutely requires at the moment and of making adequate restitution if he is able.²¹

²¹ Prop. damnat. sub Innoc. XI, n. 36: “It is permitted to steal not only in extreme necessity but also in grave necessity.” (Denzinger-Bannwart, n. 1186).—Cfr. Gury, I, n. 601: “A poor person placed in extreme necessity may not take more than is necessary. Hence, if the use alone of a thing, v. g., a horse, suffices, the obligation of restoring it remains when the necessity ceases. If one in extreme need has elsewhere, in fact or in probable prospect, the means from which he can pay, he cannot take another’s property except with the burden of restitution, because the necessity then does not require the thing to be taken gratuitously, if it is relieved by a thing received on loan or lent for use. But one who in extreme want has consumed another’s property is bound to nothing after using the thing, if he has no hope that he will ever be able to restore it, even if afterward he arrives at a better condition.”

g) Akin to taking another’s property in extreme need is occult compensation (compensatio occulta), i. e., the secret appropriation of something to which one has a just claim (debitum ex iustitia), but which one cannot obtain by ordinary means. This is permissible only: (1) if the justice of the claim is indisputable, (2) if occult compensation is the only physically or morally possible means of obtaining one’s own, and (3) if there is no reason for apprehending injury to a third person, e. g., suspicion of theft, or scandal.²² These three essential conditions, which must be present together to render occult compensation licit, hardly ever actually concur, especially since there must be an absolutely certain claim of justice; mere promises or claims of equity do not suffice.²³ Occult compensation is always of doubtful moral value because it is an act of self-help, and no man is an impartial judge in his own case. Therefore Saint Thomas says: “He who, by stealth, takes his own property, if this be unjustly detained by another, sins indeed, yet not because he burdens the retainer, and so he is not bound to restitution or compensation; but he sins against general justice by disregarding the order of justice and usurping judgment concerning his own property. Hence he must make satisfaction to God and endeavor to allay whatever scandal he may have given his neighbors by acting in this way.”²⁴

²² St. Alphonsus, Theol. Mor., l. III, n. 521–524 (ed. Gaudé, II, 33 sqq.); cfr. Gury, I, n. 602–604.

²³ Cfr. Prop. damnat. sub Innoc. XI, n. 37: “Male and female domestic servants may secretly take from their masters to compensate for their labor, which they judge greater than the wage they receive.” (Denzinger-Bannwart, n. 1187).

²⁴ Cfr. St. Thomas, Summa Theol., 2a 2ae, qu. 66, art. 5, ad 3: “He who secretly takes his own property when it is unjustly detained by another does indeed sin, not because he burdens the one who detains it, and therefore he is not bound to restore or compensate anything, but he sins against general justice by usurping judgment concerning his own property for himself while disregarding the order of law. And therefore he is bound to make satisfaction to God and to take care that any scandal of his neighbors, if it has arisen from this, be allayed.”—Cfr. Janssen, Der hl. Alfons von Liguori gegen Hoensbroech, pp. 103 sqq.

To steal the intellectual property (ideas, writings, or inventions) of another is called plagiarism. It is a sin if the owner is injured thereby. There is also a sort of ideal plagiarism, which is committed if one seeks to appropriate to himself the reputation or glory of another, but it is often difficult to separate that which is the property of an author or inventor from that which he owes to the intellectual labors of his fellowmen. In the words of Dr. Linsenmann, no matter how firmly we stand on our own feet, the ground which we occupy has been prepared for us by others.²⁵

²⁵ Linsenmann, Lehrb. d. Moraltheol., p. 526.

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.

Notion. Occult compensation is the act by which someone takes that which is owed to him, while the debtor is unaware.

916. Principle. Occult compensation, with certain conditions concurring, is just and licit. It is 1. just, because he who secretly compensates himself does injury to no one, but takes only what is his own; - 2. licit, because, with the conditions observed, the order also of legal justice and charity is observed (III, n. 521).

917. The conditions are: that commutative justice, legal justice, and charity remain uninjured.

1. Let commutative justice not be injured: a) Therefore let the debt be strict, certain, and demandable; for compensation would be unjust if the debt were either not strict, i.e. from charity or gratitude alone; or uncertain, i.e. only probable, because in doubt the condition of the possessor is better; or not yet demandable, because "he who has a term, owes nothing."⁰¹ - b) Let damage to the debtor be excluded, that is, let him not be exposed to the danger of paying again (or of living in erroneous conscience). This can be excluded, for example, by fictive condonation. - c) Let damage to a third party be avoided; hence do not take away a thing loaned or pledged.

2. Let legal justice not be injured: wherefore the creditor must first, if he can, demand in court, namely for preserving public order.

Nevertheless, if this is neglected, there will be no need of restitution, nor will there be grave sin; indeed not even light sin, if through the judicial way expenses, hatreds, or other grave inconveniences would have to be undergone.

3. Let charity not be injured: let precaution be taken lest one's neighbor receive detriment, for example lest someone undergo an unjust accusation and condemnation of theft, etc.; which nevertheless you are not held to avoid with your own great inconvenience (n. 949). Cf. H. Ap., X, 21; Lugo, disp. 16, n. 87.

Compensation can be made also in another species, if it cannot be made in the same; provided the debtor undergoes no detriment from deprivation of some determined thing, for example a horse, a precious thing, etc.

918. It is asked: Whether servants, workers, officials of the government can steal something to compensate their own labor, which they judge to be greater than the salary concerning which they agreed?

Resp. Negatively, generally speaking, as is clear from the thirty-seventh proposition condemned by Innocent XI. - The reason is that they would act against the pact by which they consented to the lesser price (III, 522-524).

We said generally, because (up to the lowest price) a servant, worker, etc., can compensate himself: 1. If he was compelled by necessity to consent to a notably unequal price. Yet except if the owner had already found others justly for the same small price, or if out of mercy alone he had taken on the servant who asked. - 2. If he increases the works from the will of the owner, whether express or tacit; because then the rule must be observed, namely that every worker is worthy of his wage. But otherwise, if he increases from his own choice; because then he is judged to condone his labor, to conciliate for himself the favor of the owner. - 3. If the owner is judged to consent to compensation, as, for example, can happen with drivers hired at a lower price; for since he knows that he will be defrauded by very many, he is not to be presumed to wish to deprive honest drivers of the due salary, because he guards himself against dishonest ones.

Note. 1. Let confessors not easily permit compensation, as a thing full of dangers. But indeed, to compensation already made, to which no condition required by commutative justice was lacking, it is licit to connive to this extent, that the penitent not be bound to restitution. - 2. What compensation is just can sometimes be left even to the judgment of the creditor, if namely he is God-fearing and prudent, and the danger of self-love is absent; which nevertheless will happen very rarely (Konings, n. 710; Aertnys, l. III, n. 298).

Hidden compensation is the recovery of a thing owed to me through occupation of a thing of the debtor, done without this debtor's knowledge.

708. Principles. - I. Hidden compensation can sometimes be just and licit, 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 of the Republic. But these three can be present. And 1° No injury is done to the debtor; for by hypothesis in such compensation you receive 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 the judge cannot be approached, at least not without notable inconvenience, or that he cannot 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 enough is provided for it by the cautions to be placed in the conditions. - Thus S. Alph.,¹ Lacroix,² etc.

709. • II. But the required conditions are the following: 1° That the debt be from justice, morally certain, demandable. From justice, not from charity alone or gratitude. - Certain; for in doubt the principle is valid: The condition of the possessor is better. Therefore in doubt compensation is illicit and unjust. - Demandable ("due").

2° That the debt cannot be recovered otherwise, at least not without grave inconvenience. For if the creditor can by mere petition or recourse to a judge obtain what is owed to him, by compensating himself he does injury to the public power, and therefore sins against legal justice (n. 712).

3° That the thing be taken in the same species, if it can be done. Otherwise the debtor's thing is exchanged without his consent, and therefore unjustly.

4° That it be done from a thing of the debtor. Otherwise it would be done with damage to a third party, as would happen if it were done from a thing deposited with the debtor or lent to him for use.

5° That damage to the debtor be guarded against, namely by taking care that the debtor or his heirs not be exposed to the danger of paying twice, if perhaps they are going to restore. Hence if that case is in some way foreseen, they must be warned in some manner, for example through a fictitious renunciation or condonation, etc. But if, after the compensation has been made, they restore, it will have to be restored to them again.³

710. Questions. - Query 1° Can servants, workers, officials of the government, municipality, etc., judging that the salary is below the work furnished by themselves, use hidden compensation?

Resp. Negatively, at least speaking generally, with the common opinion. It is established 1° from proposition 37 condemned by Innocent XI, p. XVI. 2° From reason; for they would act against the agreement, since they consented to the lesser price, and from elsewhere nothing is owed to them except the price concerning which agreement was made. Besides, if that were licit, the way would be opened to innumerable thefts; for servants would easily persuade themselves that wages are less than just, and thus no security would remain for masters. - The same must also be said, from parity of reason, concerning all workers, artisans, and merchants who would wish to recur to compensation under the pretext of the cheaper price for which they hired out their works or sold their wares.

I said: at least speaking generally; because a servant can compensate himself up to the lowest price. 1° If he 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 have found other servants already justly, that is, within the limits of a just price, at least the lowest, at the same cheap price, or did not receive this one asking from mercy. 3° If unwillingly he is burdened with works not owed. 4° If the master is judged to consent to compensation, as for example can happen in the case of those who among us are called "horse-car conductors"; namely, it is supposed that by most masters those men are hired below the lowest price for this reason, that they know that they are to be defrauded by most, and that the masters are not willing (which besides they would will unreasonably) to deprive honest conductors of due salary because they protect themselves from dishonest ones. But in determining their salary, "conductors" should especially attend to the number of hours which they spend in the service of their masters, and to the salary which is given by the hour to workers of their condition. Meanwhile they must be exhorted to seek another trade, on account of the danger of injustice to which they expose themselves.

Query 2° At least can a servant who increases the works owed compensate himself?

Resp. 1° Negatively, if he acts thus by his own choice, because then he is judged to condone his work 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 express or tacit, because then the worker is judged worthy of his wage by right.¹ - But what compensation is just can sometimes be left also to the judgment of the servant, if he is fearful of God and prudent, and the danger of self-love is absent; which nevertheless will happen very rarely.²

711. • Query 3° Can he use hidden compensation who is condemned by a judge to pay a debt which he certainly did not contract, or to which he certainly has already made satisfaction?

Resp. Affirmatively, because the sentence of the judge is unjust, as being founded upon a false presumption of fact, and therefore cannot bind in conscience. For although one must always stand by the sentence of the judge in matter of law, unless it is a question of a law or sentence evidently unjust, it is otherwise, scandal being set aside, if the judge certainly errs concerning a fact which from error he thinks true. From another source, moreover, the judge does not have the faculty of transferring dominion; nor can one who has obtained a favorable sentence, even after the error has been detected, keep the thing adjudged to him. - Thus commonly.

712. • Query 4° Does he sin gravely, and against justice, who compensates himself without first having recourse to the judge?

Resp. 1° He does not sin of itself against justice, provided he takes only as much as is owed to him; nor therefore is he bound to restitution. The reason is clear, because, this compensation having been made, equality is restored between him and the debtor. I said: of itself; because sometimes detriment could follow for the debtor from deprivation of some determinate thing, for example a horse, a precious thing, etc. - Lugo,² and others.

Resp. 2° Nor does he sin gravely, speaking generally; because ordinarily from this inversion of order neither grave scandal nor grave disturbance of the Republic follows. - Lugo.³

Resp. 3° He does not sin in any way if recourse to the judge is difficult, if there is danger of scandal, or extraordinary expenses, etc., because then recourse is morally impossible.

Admonition. - Confessors should not easily advise compensation, and should rarely even permit it. But to compensation already made, to which none of the necessary conditions is lacking, it is licit so far to connive, that the penitent not be bound to restitution.

To recover one's own thing, even by employing moderate force, is licit, whether when the unjust robber is caught in the very delict, or when the thing has not yet been put in safety; indeed it is licit if it has been put in safety by the robber, provided it is movable and still exists in species. For in the former hypothesis you use the right of defense (n. 471. 1°); in the other, neither is the right of the robber injured nor is the order of right passed over. Mar. p. 333. n. 185.

409. State of the question. - Theft is the unjust taking of another's thing; and therefore it can never be made honest or excused. Nevertheless there are causes which make the taking of another's thing no longer unjust but lawful, and for this reason they are called by theologians excusing causes. These are two: urgent necessity and hidden compensation (uiterste nood and heimelijke vergoeding).

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.

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.

XII. The Fathers of Salamanca, tract 13, chap. 1, doubt 13, no. 318: “Whether one who has an opinion that a thing is owed him may use occult compensation?” They answer, no. 319: “It must be said therefore that in general and in the abstract, so to speak — that is, for all cases — it is not lawful to use occult compensation when there is given only a probable opinion for either side, that is, for the debtor and for the creditor; but in particular cases it is lawful. And it is also lawful in all cases, when there is given a greater probability on the creditor's side that such a debt is owed him.”

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.

A man working for a railroad company compensated himself secretly to the amount of about one hundred dollars. He did so at the suggestion of fellow-workmen, who convinced him that he was doing more work than his weekly salary paid for. Prior to being advanced to his present position, this man knew the nature of the work that would be required of him, and the long hours necessary to do the work. This happened several years ago. Now, for some months back, this man has been trying to get an increase of wages from the company. The matter has been taken under advisement by his superiors before whom such matters come for consideration, and they seem to have practically admitted that he is entitled to an increase of ten dollars per month. However, they have been procrastinating now for five months, and are not likely to give the increase until spring, because, this man says, they know that the winter is a bad time for a man to quit work, that a man can not well better himself at this time, and therefore he will not give up his present employment. Now, suppose that the time runs on long enough before they increase his wages, and the total amount to which he thinks himself entitled amounts to one hundred dollars, would this man be justified in not restoring the hundred dollars already taken?

Answer.—According to the moralists very definite conditions must be verified before occult compensation or secretly recovering what one believes to be one’s own, can be considered lawful in conscience.

1. Ut debitum sit verum. Our claim must be founded in strict justice, and not merely in gratitude for work well done, or in promises to remember us in one’s will, etc.

2. Ut debitum sit certum. If there be any reasonable doubt whatever that we have no strict claim in justice, then possession is ninetenths of the law, i. e., the party from whom we endeavor to recover is in possession, and law and equity favor him, and he has a right to keep what he has in his possession until it shall be proven beyond reasonable doubt that it belongs to another. If this were not so, hallucinations would prove a prolific mother of thefts.

3. Ut debitum aliter obtineri non possit. The public peace and the welfare of the social structure require that debts be collected through the channels created by custom and law, and only when these are inadequate can recourse be had to secret recovery.

4. Ut damnum debitoris vel tertii caveatur. We may injure the debtor in secretly recovering from him if we expose him to the danger of paying the debt twice, or leave his conscience charged with the debt, when in fact the debt is discharged. A third person may be injured by being suspected of dishonesty, etc., and thereby suffer loss of position or legal prosecution.

In regard to employees the moralists say: Beyond the salary agreed upon, provided it is at least the minimum, it is not lawful for him to compensate himself; for beyond the agreement to which he himself consented, nothing is owed to him.

Where no fraud or deception or force has been employed, and the nature of the work was sufficiently understood, and the employee was not driven by stern necessity to agree to work for a wage that is manifestly unjust, there can be no room for secret compensation. If, in the course of his employment, the work required of him should suddenly become more dangerous than could have been foreseen, or much more arduous, as, for instance, night work instead of day work, and the man could not very well get another position immediately, then he might recover secretly. Applying these conditions to the case before us, we are forced to admit that the hundred dollars that this railroad employee took was not a debitum verum, nor a debitum certum, and that this employee had no strict right, founded in justice, and beyond all reasonable doubt, to the said money. The pay that he was receiving from the railroad company was evidently not infra minimum, and if it were, he was not obliged by extreme necessity to work for it, since he could have found other work to do, and since he knew beforehand the nature of the work that was required of him and the wages he was to receive for it. He agreed to do the work for the wage of his own free will and not being constrained, and with full knowledge both of the labor demanded of him and the recompense promised. That was a contractus onerosus, entered into without fraud or deception or force, and the employee had no right therefore to alter its terms, without the consent of the other party to the contract. The hundred dollars must be restored to the railroad company. It is evidently their property and res clamat domino. This we say in view of the first part of the case. But what of the second part? Before coming to the second part of the case we will call attention to a condition, in connection with this first part of this case, existing in almost every large city of the United States, viz.: the dishonesty of street railway employees. There are 3050 conductors employed on the New York City railway lines. In the year 1904, 3491 were discharged, of whom 3436 were in the service less than a year. In 1905, 3019 conductors were discharged, of whom 2864 had been less than one year in the service. In 1906, 4976 conductors were discharged, of whom 4776 had been less than a year in the service. In the first six months of 1907, 3265 have been discharged, of whom 3144 were in the service less than one year.

The tremendous extent to which these discharges have been for dishonesty or stealing is indicated by the following figures:

In the present year, therefore, if the average for the first six months is carried out, the entire force of conductors on the surface lines will be discharged virtually twice over for dishonesty alone. This means a loss to the surface railway company of New York City, inclusive of fares not collected, of more than ten per cent. of its gross income, or upward of two million dollars a year. Various statements of what this system of self-compensation was worth to individual men have been made up, but only as estimates. One man high up in the councils of the surface railway company said the other day that a former valet who was put in on the road as a motorman found that his share of the daily profit was from $2.00 to $3.00 under normal conditions. Several months ago there was a case in the divorce courts in New York City in which the wife of a city railway conductor was suing for alimony, and in her bill charged that although her husband’s salary from the railway company was only $18.00 a week, he ought to pay alimony on a $50.00 a week basis, as he “knocked down” $35.00 a week on the side. There was a disposition to believe at first that this was an exaggeration, but subsequent investigations bore out the facts. The ordinary reason advanced to justify this dishonesty is that the men are not being paid sufficient wages and therefore are obliged to recover secretly. On the other hand, it has been asserted in the investigation of traffic conditions by the Public Service Commission that the deficit of the New York City railway system in the fiscal year ending June 30, 1907, was over $3,000,000. In other words, although the gross receipts for the year 1906 were $21,937,943, there was a deficit of $2,212,997, two millions of which was caused by dishonest employees. So easy is it for men to persuade themselves that they have a right to recover by secret compensation! (Cf. New York Times, November 17, 1907.) How earnest, therefore, ought not the confessor to be, especially before the fact, in disabusing men of this false conscience.

In regard to the second part of the railway employee’s case, namely, would it be permitted to this man to keep this hundred dollars, or any portion of it, amounting to $10.00 per month, for the time that the railway company acknowledged that his pay ought to be increased $10.00 per month, but nevertheless failed to increase it?

If the railroad company has really acknowledged that the work of this employee is worth $10.00 per month more than he is receiving in wages for it, and if the true reason why the company does not increase his pay at present, is because they feel that he is obliged to work for them anyway, then they are taking advantage of his need to defraud him of what they freely confess in justice belongs to him and which they unjustly keep back from him, and therefore he might be permitted to deduct from the sum he owes the railroad company the sum of $10.00 for every month that the company fails to increase his pay since the time that they acknowledged that his wages ought to be increased to that extent. If the company’s delay covers more than ten months, we would not permit the man to resume recovering secretly, but we would advise him to change his employer if he thought he could not work for the wages he contracted for. If, however, the reason why the railroad company did not at this time wish to increase his pay, was because they could not very well afford to do so economically, owing to the stringency of the money market for the last four or five months, then we do not think that this employee would be allowed to reimburse himself from the money he owes the company. In this case the company would not be taking undue advantage of this employee’s need, but would be simply refusing to pay more wages for a certain kind of work than they could afford to pay and which they could get other men to do just as well for the present wage, which is, we suppose, not infra minimum justum,

Tullius, a wealthy but parsimonious widower, makes promise to his servant girl Claudia to marry her within a year’s time, which promise Claudia accepts with pleasure and returns on her part. In the meantime another advantageous offer of marriage is made to her by another party, which she refuses in view of her expected marriage to Tullius. Subsequently, Claudia learns that Tullius is about to marry another person who possesses a considerable fortune. To Claudia’s inquiries Tullius answers that he indeed has this intention, and he disputes that he ever made Claudia an actual promise of marriage, nor will he agree to any compensation. Claudia, realizing that further representations will be useless, and unable to produce legal proof that a betrothal exists between her and Tullius, tries to think of a means of getting indemnity some way or another. An opportunity soon presents itself. One day as Tullius returned home with a well-filled pocketbook he dropped it unawares while ascending the stairs. Claudia observed it, picked up the pocketbook secretly, and took the money contained therein, amounting to about $600, to a place of safety. Claudia believed she was doing no wrong, but was acting only in self-protection. When Tullius missed the pocketbook, his suspicions fell immediately upon Claudia; thinking that she had taken the pocketbook either out of his coat or from his desk. He accused her of the theft and had her arrested and examined. She asserts that she neither wrongfully appropriated nor stole anything from her employer. This deposition she confirms finally by oath, whereupon, for lack of evidence, she is set free.

Questions —(1) Has Claudia a justifiable claim for compensation? Is Tullius obliged to make restitution to her? (2) If this is affirmed, the question is: May Claudia satisfy her claim by secret compensation? (3) As regards manner and means of Claudia’s act to compensate herself, are they lawful and permissible? (4) Was Claudia permitted to swear to her deposition or did she thereby commit perjury?

To the first question: Claudia has a double right to demand restitution: (a) Because Tullius unlawfully withdrew from the betrothal; (b) because he was the cause of Claudia’s refusal of an offer of marriage made by another. About the sum to be given in restitution Lehmkuhl observes: Qui injuste a sponsalibus recedit.. adigitur ad justam damni compensationem quae.. communiter secundum convenientem puellae dotationem aestimari solet. Therefore, in our case the sum of $600 cannot be considered too much. And even in the case that the betrothal had for some reason been technically invalid, Tullius would still be obliged to make restitution, because Claudia, on account of his promise of marriage, rejected another advantageous offer, and thus through his fault suffered great loss. There can be no doubt, therefore, about Claudia’s right to compensation.

Answering the second question: Secret compensation (compensatio occulta) is allowed in the presumption: (a) that the claim is without all doubt certain; (b) that it is impossible, or at least difficult, to attain one’s right by ordinary and legal means. That the first presumption is true in our case is clear from the answer given above to the first question. That the other condition prevails is evident from the statement of the case. Hence, Claudia is justified to resort to secret compensation in order to satisfy her just claim.

To the third question: When once the lawful claim is established, then the manner of compensating oneself is immaterial, any manner is permissible, provided (a) that neither the debtor nor a third party suffers unjust injury; (b) that those who compensate themselves in this way must not thereby inflict upon themselves a relatively greater injury, or place themselves in imminent danger of losing a greater good. Regarding the first point it cannot be seen how in our case a third party might suffer loss. Not even Tullius is unjustly injured. This would be the case only then if he afterward repented and voluntarily made restitution to Claudia, which, however, is evidently improbable. And should he do so, Claudia would be in a position to refuse the proffered compensation wholly or in part. The first-named presumption is true, therefore, in our case, and on that account Claudia’s procedure is not unlawful. It is different with the second presumption. The way and means by which Claudia helps herself to her rights are at all events very dangerous for her. She puts herself in danger of losing freedom and honor before the world. If her act had been proven against her she would have been branded as a thief and perjurer. Proper self-love does not permit that, on account of a lesser good (in our case, the money), one should expose oneself to the danger of losing a higher good, honor and liberty. Nevertheless, even though Claudia’s action, because of the danger incurred, may be considered unallowable, still she may post factum retain the money obtained in this way as compensation for the wrong suffered.

To the fourth question: Claudia, in her deposition to the Court, was not guilty of an actual lie, as indeed she neither stole nor wrongfully appropriated anything. She made use of an equivocal expression, the so-called perceptible mental reservation. This mental reservation in the wider and unreal sense (late sen impro-prie mentalis) is, according to the universal opinion of theologians, permissible when sufficient cause is present (Gury, Theolog. moral. I., n. 442, edit. 4; Ratisbon, p. 199). And Claudia could swear to her deposition with good conscience. In regard to this the rule is: Whatever one can state without lying or sinning, one may, for a good reason, also confirm by oath (S. Alph. Liguori, Theolog. mor. I., III., n. 151, et 152). That Claudia had important reason for her action is apparent: not only honor and good name, but even her liberty were at a stake. Hence, it is evident that Claudia committed no perjury, but only a permissible act of self-defense. Dr. Joseph Niglutsch.

Martina, a woman1 in poor circumstances, had a wealthy sister Rosina, who was a widow with children. The latter said to her: " If you will send your clever daughter, Caroline, to college, I will pay all her expenses." In consequence of this offer, Caroline finished her course at the high school, and with her aunt's consent proceeded to the college. Rosina kept her word and paid all Caroline's expenses until the time of her death, which occurred suddenly. Martina, knowing that her sister had left no will, at once took $1000 out of her sister's cash-box, a sum which probably would barely suffice to enable Caroline to complete her course. The question is asked whether Martina acted rightly.

With regard to private compensation or indemnification, St. Alphonsus writes as follows in his work " Homo Apostolicus " (X. n. 21): "Three conditions are necessary if private indemnification is to be admissible: (1) The debtor must incur no loss by it; (2) the debt must be just and certain; (3) it must be impossible to obtain payment in any other way, for which reason a creditor should first claim the money by legal methods; although, should any appeal to law on his part involve great expense, or hostility, or any other disadvantage, he does not commit a mortal, or even a venial sin, if he fails to have recourse to it on that account."

A debt is regarded as certain, if it depends legally on justitia commutativa, and not merely ex fidelitate or some other Christian virtue, and if there are no reasonable doubts as to the facts of the case. Authorities warn us against private indemnification in cases where the advantage is based on a mere promise, since a promise, even after it has been received by him for whose benefit it was made, is generally, according to a very probable opinion, binding not ex justitia commutativa, but only ex fidelitate, and it is often uncertain whether the person who made the promise really intended to impose upon himself an obligation binding on his conscience.

Although the laws of Church and State seem opposed to our regarding private indemnification as permissible in the case under consideration, there are several good reasons for thinking it allowable.

(1) By her promise Rosina imposed a charge not only on herself but on her property, so that it may be treated as a promissio realis. She was entitled to do this if it was not to the disadvantage of any possible creditors, and involved no danger of diminishing the proportion that she was legally bound to leave to her heirs. That she fully intended to pledge herself appears from the implied agreement: " do ut facias ": i. e., " I pay the expenses, if Caroline studies." Such a promissio realis, according to Lehmkuhl (n. 1062, 4), passes on to the heirs: "if, after a promise has been accepted but before its execution, the promisor dies, a real promise passes to the heirs; a personal promise does not pass."

As secret indemnification seemed to be the only way by which Martina could obtain, after Rosina's death, the money to which she was entitled, it cannot be considered Wrong. But the whole amount must be spent on Caroline's education. If for any reason she should not complete her course, the balance properly belongs to Rosina's heirs. (2) If the person promising foresees that failure to comply with his promise would cause serious loss to the other party, the promise is binding, even a purely personal promise, ex justitia commutativa: "every promise binds incidentally in justice if one’s neighbor would suffer loss from its non-fulfillment" (Marca, n. 1062), a circumstance that would plainly occur in this case, if Caroline were unable to continue her studies after Rosina's death. This is another and very important reason for regarding the secret indemnification as permissible.

(3) A third reason would exist if Martina took the money from her dead sister's cash-box bona fide, believing that she had a right to it; for in this case, even if the promise were purely personal, there could be no obligation to make restitution. To the question: "whether the promisee may secretly take the thing promised if the heirs refuse to stand by the promise," Marc answers (n. 1062, q. 4): "I deny it, since the thing probably is not owed in justice. If, however, he has taken possession of the thing in good faith, he may retain it until the judgment of a judge determines otherwise, because of the probability of the opinion affirming an obligation in justice. For in a conflict of probable opinions, one must stand for the possessor, if this is known."

These arguments justify us in regarding Martina's secret indemnification as quite permissible.—Johann Schwienbacher, C.SS.R.