Debts with the employer and salary waivers: what the Supreme Court rules
The Labor Section of the Supreme Court of Cassation (Order no. 24617 of August 12, 2026) clarified the boundaries of the pactum de compensando. The ruling confirms that employers can lawfully recover funds misappropriated by an employee by directly withholding their future salary, constituting a valid voluntary set-off under Article 1252 of the Italian Civil Code. Crucially, the Supreme Court of Cassation established that a valid set-off agreement can be proven by the employee's conclusive conduct, such as working without actual pay for an extended period.
The recent order no. 24617 of August 12, 2026, issued by the Labor Section of the Supreme Court of Cassation, decisively addresses the issue of offsetting an employee's debt against future wages. The ruling clarifies the boundaries of validity of the pactum de compensando (set-off agreement), confirming that employers can lawfully recover misappropriated funds by withholding the employee's salary. This decision holds significant practical relevance for businesses and professionals dealing with financial issues arising from employee disloyalty.
The case and the regulatory framework The dispute originated from a claim filed by an employee, working as a secretary, seeking the payment of salary differences, severance pay (TFR), and payment in lieu of notice, amounting to over 94,000 euros. During the merits phase, it emerged that the employee had repeatedly misappropriated funds from her employer, totaling more than 108,000 euros. To manage this debt, the parties agreed that the employee would retain the unlawfully collected sums as an advance on her future monthly wages. Both the Court of first instance and the Court of Appeal rejected the employee's claims, deeming this compensatory agreement entirely valid.
The legal issue: the pactum de compensando The core of the dispute concerns the admissibility and proof of an improper (or "de facto") set-off agreement, independent of the strict quantitative and formal limits set by the Italian Civil Code. The employee challenged the existence and validity of this agreement, arguing before the Supreme Court of Cassation that it was legally impossible to set off a certain debt against a future and not yet accurately quantified credit, such as a salary. The judges of legitimacy were therefore called upon to assess whether the employee's extra-procedural conduct could constitute proof of a pactum de compensando and whether Article 1252 of the Civil Code permitted such a transactional operation.
The decision of the Supreme Court of Cassation and the legal principle The Supreme Court of Cassation upheld the decision of the lower courts, dismissing the employee's appeal in its entirety. The order recognized the decisive evidentiary value of the employee's conclusive conduct; she had continued to work for approximately a year and a half without receiving any material remuneration, benefiting solely from the payment of her social security contributions. This specific conduct was interpreted as a clear acknowledgment of the debt and a tacit yet unequivocal confirmation of the set-off agreement.
From a strictly legal perspective, the Supreme Court of Cassation reiterated that Article 1252 of the Civil Code authorizes voluntary set-off. The parties may validly derogate from statutory conditions and agree to offset existing credits, or preemptively establish the necessary conditions for the set-off effect to occur in the future, including future salary credits within this scope.
Operational and practical implications The principle established by order no. 24617/2026 provides important safeguards for employers. Businesses and professionals can enter into valid derogatory agreements to recover an employee's debt by directly withholding their salary, thereby structuring a legitimate voluntary set-off. However, it is essential that the agreement is supported by solid and unequivocal evidence—even if based on prolonged and uncontested conclusive behaviors—in order to effectively withstand any subsequent salary claims in court.
