ARTICLE II: ON RESTITUTION ON ACCOUNT OF DEFLORATION AND FORNICATION

809. Principles. - I. For merely natural damage, or for the injury of bodily integrity and the loss of virginity, nothing, at least more probably, is to be restored; because that damage cannot be compensated by money.¹ Hence, agreement being set aside and no other damage having followed, for example because the crime lies hidden, or the woman has married honorably, has professed religion, or has died at a premature age, nothing is owed.

II. Even for temporal damage which has followed from base intercourse, nothing, except the education of the offspring, must be restored when the woman consented to the solicitation; for no injury is done to one knowing and willing.²

III. If the deflowerer violated the girl by force or fraud, he is bound to repair all damages coming from it to her or her parents. Yet, if Marriage was not promised, he is not bound to marry her, unless the damage can in no other way be repaired or he has been condemned to this in penalty. But he is bound only for part of the damage who, through moral force alone, suppose threats, reverential fear or fear of infamy, very importunate prayers, touches and kisses, elicited the consent of the girl.³

810. Questions. - Query 1° Is the violator bound to marry the girl violated under promise of marriage?

Resp. The common opinion, and according to S. Alph.⁴ altogether to be held, affirms. The reason is 1) because otherwise the damage cannot be repaired adequately; 2) because the unnamed contract Do, that you may give, etc., is then perfected when the handing over of the thing or the furnishing of the work is done; and then the reason and force of laws which render base agreements void ceases. For the obligation which is then contracted by the other party is not base, nor does it drive one to a base thing. - Yet note the following.

I. If the promise was not the motive cause of the woman's consent, it, as any other gratuitous promise (n. 872 sq.), will have to be interpreted.

II. If it was the motive cause, it obliges from justice, unless excusing causes are present. Hence the obligation ceases: 1. If the outcomes of a very bad marriage are feared, for example on account of the lighter disposition of the girl, hatreds and quarrels of the families, etc., because in these cases the promise, as being concerning an illicit thing, was invalid. 2. If the man afterward discovers that the girl had already been deflowered before or had afterward fornicated with another. The reason of the former is that there is no obligation of furnishing to a corrupted woman what was promised to a virgin; of the latter, because faith is not to be kept with one breaking faith. 3. If, as is clear, the girl herself rejects marriage. 4. If an impediment of marriage is present, the obligation ceases, because it is impossible of fulfillment, if in it there is either never or rarely dispensation; because it is concerning an illicit thing, if the woman is non-Catholic (yet in this case, under the due conditions, dispensation must be sought, if the woman, otherwise honorable, suffers danger to her reputation on account of the man's delict). The obligation holds, and that even with grave inconvenience, if dispensation is usually granted in the impediment, whether an agreement of seeking dispensation is supposed or even set aside. Otherwise if (the agreement being set aside) the fornicator inculpably did not notice the impediment and cannot remove this without grave inconvenience (which nevertheless today scarcely exists). The reason of each is that one who has taken upon himself some obligation by an onerous contract is bound, even with grave inconvenience to himself, to remove impediments which he knows or culpably does not know to stand in the way of fulfilling this obligation; but not those to which (the agreement being set aside) he inculpably did not attend. 5. From a fictitious promise, as from damaging fraud, an obligation exists equally as from a true one. But it does not exist in the case in which the fiction could easily have been perceived by the woman, for example from ambiguous words or from known notable disparity of condition; for then she wished to be deceived and is to be judged to have consented freely.

Compensation made in another way than through marriage is required and suffices: a) Very probably, in the case under 5, if the woman was ignorant even of the fornicator's disparate condition, because justice obliges only to equality, and the woman was not seeking consent of so great a value; b) In the case under 3, if it does not stand through the girl that she enters into nuptials, for example the parents impeding them. Then compensation made in another way suffices, as is clear of itself; more truly, as it seems to S. Alph., it is required, because the promise was made principally for repairing damage; c) In the case under 4, if (the agreement concerning seeking dispensation being set aside) the fornicator did not inculpably notice the impediment of marriage and cannot remove the impediment without grave inconvenience. Resolve the same if dispensation is denied. The reason is that it is always true that damage was unjustly given.

811. • Query 2° Is the violator bound to anything toward the parents of the violated woman, if she freely consented to the sin, for example because they must increase her dowry?

Resp. Most commonly negatively, since the girl is mistress of her body, not the parents. Wherefore, since she is not bound toward them concerning damage, neither can the violator be bound concerning it. Except if this man, by spreading abroad the violation, brought infamy upon the girl, in which case he is bound concerning every damage arising to the girl and the parents from the infamation.¹

Query 3° To what is the violator bound toward spurious offspring?

Resp. 1° If he oppressed the mother by force, he is bound to all expenses of nourishment and education. The reason is clear from what has been said. Yet in his default, the mother ought to undertake care of the child, although she admitted no fault, because she is the mother. But then she preserves recourse against the corrupter, who is bound to compensate to her all expenses which she made on occasion of the offspring.

Resp. 2° If the woman consented to the sin, by natural right both parents are equally and in solidum bound to those expenses. As regards the Fed. States, Smith notes:³ "The ... duties of parents of bastards are regulated to a great extent ... by local statute."