Question XIV: On the restitution owed on account of homicide, or mutilation

It is certain, first, that a homicide is held to restitution of the expenses incurred for the cures: the Lex, Quae actione in principio, ff. ad Legem Aquiliam, and the Lex, ex hac lege, ff. si quid paup. fecisse dicatur.

In canonical law also it is plain from cap. 1. de iniuriis, et damno dato.

Second, he is bound to restore the profits which the slain, or mutilated, or wounded man would have accumulated: L. X. Quae ait, ff. ad L. Aquiliam, and the Lex ex hac Lege, and in the canon law, loco cit. Ubi Iuristae. Those profits, then, are to be restored, deducting what he himself would have spent, namely on food, clothing, etc., in the course of his life.

The course of life is computed in the Laws at 60 years: the Lex computationis, and the Lex Hereditatem, ff. ad Leg. falcidiam. Yet those laws spoke only of allowances assigned for life in the external forum.

The computation will be better made, with all things prudently considered: health, age, trade, and other circumstances. So Lessius Tom. 1. Lib. 2. cap. 9. dub. 20. num. 129. Menoch. de arb. qq. Lib. 2. casu 121. Fagundez L. 5. cap. 18. num 8. and others cited by him.

This restitution is obligatory even if the killer be beheaded. So Nauar. cap. 15. num. 22. Lessius lib. 2. cap. 9. dub. 21. Couar. lib. 1. var. cap. 10. and others, against Scotus 4. dist. 15. quaest. 3. Fagundez num. 19. and others.

The heirs of the homicide are held to the restitution, provided he left free goods in which they succeed. Bassaeus num. 10. adds, probably, that they are not held to restore to the creditors of the slain man, nor to those whom the slain man was supporting gratuitously.

Many indeed think that restitution is not owed to heirs who are not father, sons, wife, or such persons as the slain man was bound to support. So Lessius dub. 26. num. 155. Sotus Lib. 4. de Iust. quaest. 6. art. 3. ad 3. and others.

Yet the opposite is held by Farinac. Tom. 4. quaest. 119. de Homicidio, num. 127. Abbas on cap. 1. de iniuriis, et damno dato. Socinus there, num. 57. and 63. The reason is that every right of the deceased passes to the heirs, whoever they be. To this Bassaeus n. 21. assents, with both Nauarros.

Whether, however, the homicide is bound to restore money also for the injury of the murder itself, I judge, according to the mind of D. Bonaventure, that he is not bound, because it is not of the same order. So the Doctors commonly, at Fagundez cap. 20. — although Bassaeus num. 5. with others opposes this, if the heirs are in need.

They also ask: if Titius should kill Peter, and an innocent Caius be condemned for the murder, is Titius bound to make restitution to Caius?

The common answer is that he is not bound, provided Titius did not foresee the damages that could befall Caius. So Less. 2. cap. 9. dub. 16. num. 110. Sotus L. 4. de Iust. quaest. 6. art. 3. Nauar. summa Latinae, cap. 15. num. 17. Zech. de casib. reserv. casu 12. Lazarius Papensis de qq. Canon. quaest. 6. sect. 3. Fagundez cap. 17. num. 3.

But if he foresaw it, and was unwilling to take precautions: some say he is bound to restitution. So Lazar. quaest. 11. Corradus p. p. quaest. 128.

Yet the opposite is taught by Less. Lib. 2. cap. 9. dub. 16. num. 111. and others at Fagundez loco citato, num. 6. Lessius says the same, even if he had killed Peter with this very intention. Fagundez holds the same opinion.