Question Six: On Restitution for Homicide and Wounding

375. State of the question. - The obligation of making restitution arises from homicide and wounding committed unjustly, efficaciously, and culpably against one unwilling; hence:

a) He who kills or mutilates another by mandate of public justice, or in a just war, or for the sake of just defense and with the moderation of blameless defense, is held to no restitution.

b) Likewise probably he who in legitimate defense has exceeded just moderation rather notably, because the attacker is judged to take upon himself every damage which he can suffer from it, since he knows how difficult it is to preserve moderation in defense and knowingly exposes himself to this danger. St. Alphonsus, however, affirms that restitution must be made; which is certain in the case in which the judge has condemned him to reparation.

c) He who has killed or wounded another in a duel, whether he was provoked, or himself provoked, or both provoked each other mutually, is not held to restitution, because the other freely accepted the duel¹ and thus yielded his right, for to one knowing and consenting no injury is done. Nevertheless he is held, if by force, authoritative command, or grave threats he compelled the other to accept the duel, because he used unjust means for extorting consent and the other accepted only under compulsion and unwillingly; and outside this case, if the civil judge has condemned him to reparation, but then he is held from legal justice.

¹ Not so if the other was moved merely by human respect, because the provocation is an occasion of human respect, not a cause.

But a threefold damage can arise from homicide or mutilation: 1. bodily, for example, the loss of life or members; 2. spiritual, insofar as the one killed is deprived of the opportunity of doing penance, receiving the sacraments or meriting, or of suffrages which by testament he could have procured for himself; 3. real damage in external goods, which happens either to the one killed or mutilated himself or to others, such as members of the family, as expenses for curing the wound, profit ceasing on account of the death or mutilation or infirmity of the injured person. Now the question is what damages an unjust homicide or mutilator is held to restore.

376. Principles. - I. An unjust damager, of himself, probably is not held to repair bodily damages which cannot be recompensed in an equivalent; unless it is a question of a slave who is estimable by price for the master, or unless a judge has imposed compensation. In which case restitution must be made to the injured person, not to those joined to him or to heirs, unless the judge has determined otherwise. But the obligation of itself is personal and, excepting the case of a slave, does not pass to the heirs of the one unjustly damaging.

When no compensation is imposed by a judge, it is by way of counsel for the confessor to impose some compensation, for example, in alms or Masses.

II. An unjust damager is held, as far as he can, to compensate the spiritual damages foreseen to the injured person, and indeed in the same genus of goods. This can be done through prayers, Masses, and other spiritual works. Wherefore let the confessor warn concerning this obligation; indeed he will be able to impose some work by way of sacramental penance. The obligation is personal and does not pass to heirs.

III. An unjust damager is held to repair all real damages which he foresaw at least confusedly would follow of themselves from his action: for of these he is the unjust, efficacious, and culpable cause. And indeed:

a) As regards the injured person, there must be compensated 1. the emergent damage which he himself underwent on account of the wound, death, or mutilation, for example, by expenses made for his cure, but not for funerals, unless they were greater than if the injured person had died at home; likewise 2. profit ceasing but preceding death, namely, which would have come to the injured person for the time which preceded death, but now, for example, on account of cessation of labor or the infliction of the wound, did not come. This must be estimated with all circumstances of person, age, office, and labor considered.

b) As regards others, restitution must be made for their damage of which the killing or mutilation was the cause of itself; namely:

1. To necessary heirs, that is, parents, children, and spouse, for their suitable support or conveniences of life; but the compensation must be proportionate to status and expectation, and none is to be made if no damage has been inflicted, as if otherwise they have or receive that by which they may support themselves, for example, on account of the liberality of another or new marriages entered into. For other goods, of itself nothing is to be restored, because they did not yet have a right to them, and because the homicide is the cause of this damage per accidens; yet he is held to make restitution if a judge has condemned him to this.

2. To voluntary heirs, relatives, and friends, restitution must not be made, because the damager is only a cause per accidens of the damages which come to them; - unless perhaps some one of them had been received into the family of the deceased and held as a son, so that the deceased had strictly obligated himself from justice to taking care of him.

3. To creditors or to the society which insured life, nothing is to be restored, since the damage was inflicted on them per accidens, since it rarely and remotely follows from homicide: namely, it is per accidens that the injured man had creditors.

Restitution on account of damages directly inflicted upon the goods of the injured person must first be made to him himself, and after his death, to his heirs of whatever kind, as succeeding into the rights of the deceased; but in their defect, to the poor or to good works. As regards damages inflicted on others, restitution must be made to necessary heirs and indeed to them alone. In each case, the obligation of making restitution is real, and therefore passes to the heirs of the damager.

377. Corollaries. - 1. Greater restitution generally must be made for the life of a common craftsman than for the life of a nobleman exercising no art and applying himself more to convenience than to gain and labor. Unless, however, the nobleman, by prudence, knowledge, or the benevolence of a prince, would have gained more than a simple craftsman.

2. Nothing must be restored by the homicide, if the one killed was old or infirm, who could no longer acquire anything by his art, work, or industry, or if he was an inert and careless man, because then no damage truly followed after death.

3. In the case in which one lethally wounded, spontaneously and freely before death, remits to the homicide not only the injury itself but also all real debts, from strict justice the latter is not held to restitution, because debts are extinguished by condonation, and injury is not done to children in goods except insofar as they are injured in the father against his will. Thus, although the wounded man by condoning has injured charity, if his relatives need support.

4. Since it is often difficult to determine how much must be restored for homicide, in practice an amicable settlement is to be advised.