OCCULT COMPENSATION. – Occult compensation consists in taking or retaining, without the debtor’s knowledge, whatever is sufficient to recover or make reparation for what he is obliged to give or repair. It differs from legal compensation, the amount of which is determined according to law by a judicial sentence, and from arbitral compensation, the amount of which is determined by the arbitrator called upon to decide between the contending parties, because it is carried out by private authority. This act, which cannot be called an act of justice, but rather one of charity toward oneself, did not always receive approval in Catholic theology. St. Thomas himself is not clear on the matter, treating it only incidentally (Sum. Theol., 2ᵃ-2ᵃᶜ, q. 58, a. 2). Indeed, there were rigorist authors who categorically denied its lawfulness on the principle that it is not lawful to repair one injury by inflicting another, on one’s own authority; moreover, basing themselves on a false interpretation of proposition 37ᵃ (Denz-U, n. 1187), condemned by Innocent XI, which proscribed only abuse in the practice of occult compensation on the part of servi, they inferred that it could not be understood how occult compensation, if lawful for others, could be unlawful for servi.
Today authors are unanimous in affirming the lawfulness of occult compensation, although they acknowledge that in practice its use is very dangerous. The danger consists above all in the extreme ease with which, by exercising the right of occult compensation, the rights or interests of others may be infringed. Hence the use of occult compensation is lawful only when certain specific conditions are present.
Ten are usually enumerated: 1) the debt must be sufficiently certain. This means moral certainty and, at least speculatively, a serious probability may suffice; 2) the debt must be payable in justice: for if it were payable only out of charity, gratitude, etc., since these grounds do not create a strict «right to the thing», it cannot be exacted; 3) the creditor must have no other way of compensating himself without manifest danger of serious harm: occult compensation is in fact an extraordinary means, which may not be used when ordinary means are available: a private demand, recourse to a judge, etc.; 4) the right asserted through occult compensation must be presently demandable, and not due in the future, or due in the past and already prescribed. Nevertheless, some theologians admit that occult compensation is lawful when there is grave danger of not being duly compensated in the future and there is no other intermediate means. In such a case it must be borne in mind that the person subjected to occult compensation makes an advance payment, and therefore, in determining the amount subtracted from him, the «dannum emergens» and the «lucrum cessans» must be taken into account (cf. E. Génicot-J. Salamans, Theologiae mor. institutiones, I, 15ᵃ ed., Bruxelles 1946, n. 504); 5) occult compensation must be made with identical things or things of the same kind; if this is not possible, at least with goods or things to which the debtor is less attached; 6) occult compensation must not be made with goods belonging to the debtor that have been lent or deposited with
the creditor, since this would violate the fidelity required in such contracts; 7) the act of occult compensation must not entail harm to third parties, as would happen if the thing belonged to the creditor but was merely held by him in pledge, on lease, etc.; 8) no unjust harm must be caused to the debtor. The harm could occur in two ways: either as material harm, not only if more than what is just were taken, in which case theft would be committed, but also if the person subjected to occult compensation were exposed to having to discharge the debt twice; or as spiritual harm, insofar as the debtor, believing that he had not fulfilled his obligation, remained in bad faith and thus in a state of sin; 9) no harm must be caused to oneself, through the danger, for example, of provoking dismissal, if the persons concerned are employees, or, especially today, through running the risk of a complaint for misappropriation; 10) the interests of society and the common good must also be kept in view, since these could be harmed by occult compensation practiced on a large scale.
Under these conditions occult compensation may be considered lawful, because just as it is lawful « by natural right » to preserve oneself from harm caused by another’s injury, so it is lawful to take back what belongs to oneself when this cannot otherwise be done.
Given, however, the innate cupidity of the human heart, in occult compensation it is necessary to proceed with prudence and with the advice of conscientious and impartial persons.