HIDDEN COMPENSATION. - Secret compensation consists in taking or retaining, without the debtor's knowledge, as much as suffices for the recovery or compensation of what the latter is bound to give or make good. It is distinguished from legal compensation, whose measure is determined according to law by a judicial sentence, and from arbitral compensation, whose measure is determined by an arbitrator, called upon to decide between the contending parties, because it is done by private authority. Such an act, which cannot be called one of justice, but rather of charity toward oneself, did not always meet with approval in Catholic theology. St. Thomas himself is not clear on the matter, treating it only incidentally (Sum. Theol., 2ᵃ-2ᵃᵉ, q. 58, a. 2). Indeed there were rigorist authors who denied its lawfulness outright, on the principle that it is not lawful to repair one injury by another injury, on one's own authority; and furthermore, basing themselves on a false interpretation of proposition 37 (Denz-U, n. 1187), condemned by Innocent XI, in order to proscribe only the abuse in the practice of secret compensation on the part of servants, they deduced that it could not be understood how secret compensation, if lawful for others, could be unlawful for servants.
Today authors are agreed in affirming the lawfulness of secret compensation, although they recognize that in practice its use is very dangerous. The danger consists above all in the extreme ease with which, by using the right of secret compensation, the rights or interests of others can be harmed. Hence the use of secret compensation is lawful only when certain determinate conditions concur.
Ten of these are customarily enumerated: 1) that the debt be sufficiently certain. This is a matter of moral certainty and, at least speculatively, a serious probability may suffice; 2) that the debt be one that must be paid by justice: in fact, if it were owed only out of charity, gratitude, etc., since these titles do not create a strict "right to the thing," it cannot be exacted; 3) that the creditor have no other way of compensating himself, without manifest danger of grave harm: secret compensation is in fact an extraordinary means, which cannot be used when the way is open to ordinary means: private request, recourse to a judge, etc.; 4) that the right claimed by secret compensation be currently due and not in the future, or in the past and already prescribed. Nevertheless some theologians admit that secret compensation is lawful when one is in grave danger of not being duly compensated in the future and there is no other middle way. It must be borne in mind in that case that the one who undergoes secret compensation is making an advance payment and therefore, in the taking from him, "dannum emergens" and "lucrum cessans" must be reckoned (cf. E. Génicot-J. Salamans, Theologiae mor. institutiones, I, 15th ed., Brussels 1946, n. 504); 5) that secret compensation be made with identical things or things of the same kind; if this is not possible, at least with the goods or with things to which the debtor is less attached; 6) that secret compensation not be made with the debtor's goods lent or deposited with the creditor, since this would be contrary to the fidelity obligatory in such contracts; 7) that the act of secret compensation not involve harm to third parties, as would happen if the thing were the property of the creditor but only held by him in pledge, in lease, etc.; 8) that no unjust harm be done to the debtor. The harm could occur in two ways: either as material harm, if not only more than what is just were taken, in which case it would be theft, but also if the one undergoing secret compensation were exposed to a double payment of the debt; or as spiritual harm, inasmuch as the debtor, believing he had not satisfied it, would remain in bad faith and therefore in a state of sin; 9) that no harm be done to oneself, with the danger, for example, of provoking dismissal, if employees are involved, or, today especially, by running the risk of a charge of misappropriation; 10) that the interests of society also be kept in mind, the common good, which secret compensation exercised on a large scale could harm.
Under these conditions secret compensation can be considered lawful, because just as it is lawful "by the right of nature" to preserve oneself unharmed against another's injury, so it is lawful to take back one's own when it cannot be done otherwise.
Given, however, the innate greed of the human heart, in secret compensation it is necessary to proceed with prudence and with the counsel of conscientious and impartial persons.
Bibliography3 works
Iginio Tarocchi