Question Two: On Injury and Restitution from Adultery

386. Adultery, besides the malice of fornication by which someone approaches one not his own,

1. imports an injury inflicted on the other spouse, from the fact that someone approaches another's woman: this injury and disgrace and infamy, which the husband suffers, must of itself be repaired by satisfaction from justice as much as can be done, by seeking pardon, showing sorrow, furnishing favors, especially by honoring; nevertheless

a) if this would not be pleasing to the husband, or if the adultery has remained secret, it is better to omit this satisfaction, lest quarrels or graver things be caused;

b) if the husband is the adulterer, satisfaction does not seem to have to be made on account of the disgrace of the wife, because the wife is commonly judged to perceive no infamy and no disgrace from the adultery of the husband;

2. it imports besides temporal damage to be repaired, in the case in which offspring also has certainly been born from adultery, namely,

a) the expenses which the husband had in the birth, nourishment, and education of another's offspring, unless this offspring compensates by labor, because then there is no damage;

b) the gifts and inheritance of the father (or ascendants) handed over to this offspring, by which the legitimate children are unjustly deprived;¹ but if no legitimate offspring is present, restitution must be made to those heirs to whom the goods of the husband otherwise would fall. - Yet detriments which come merely per accidens are not to be restored, from the fact that other blood-relatives or friends give or leave certain things to the adulterous child which otherwise would have come to the legitimate children.

¹ The same holds of itself concerning the maternal inheritance, at least for the legitimate portion; unless civil law disposes otherwise. Namely the German Code, a. 1705, and Swiss Code, a. 324 and 461, concede to illegitimate offspring the right of taking inheritance from the mother and her blood-relatives; the Austrian Code, a. 754, only inheritance from the mother. More conformably to principles, the French Code, a. 762, and Spanish Code, a. 845, exclude adulterous offspring from every legal hereditary succession, and concede to him only support.

Thus if the offspring is morally certainly adulterous; for in doubt, offspring received in marriage is presumed to be from the legitimate husband, according to the axiom: the father is he whom the nuptials demonstrate. Nor must restitution be made as long as it is uncertain that the action was efficaciously damaging. But if the offspring was certainly conceived from adultery, it is asked to what the adulterer is held, whether he used unjust means or did not use them.

387. Principles. - I. The adulterer who by force, grave fear, deceit, or another unjust means has brought the wife to copula, from justice is held by himself alone to repair all damages which from this come of themselves to the husband and legitimate children, because he is the sole cause of these truly, efficaciously, and formally unjust.

II. The adulterer who has not used an unjust means, but who obtained consent from the wife altogether freely, from justice is held in solidum with the wife to repairing damages inflicted upon the husband and children; because both together are the unjust, efficacious, and culpable cause of them.

III. Several adulterers who, from copula had at a time apt for conception, can be the father of adulterous offspring, are held to reparation by proportionate part of the doubt, at least those who acted thus by common counsel or with advertence, because then they are the voluntary cause of the uncertainty of the father; - otherwise it is uncertain whether they are held to restore, since the mother is rather the cause that it cannot be established concerning the father.

Let it be noted that the adulterous woman alone sometimes is held to repairing damages which occur by reason of inheritance; namely, if she could easily have removed the child so that he would be nourished outside the family, for example, in a foundling home or hospice, and the adulterer did whatever he could to obtain this: for then he withdrew the cause of damage and did not sin against the family, and the adulteress alone efficaciously caused the damage.

388. The manner of restitution in practice often is difficult, on account of the danger of suspicion by which the peace of the family would be disturbed. Hence the following things come to be noted especially:

1. An adulterous man can make restitution by laboring for the family, or by giving to the husband or legitimate children, whether among the living or by testament, according to a prudent estimation.

2. An adulterous mother can make restitution: a) from her own goods if she has those of which she can dispose without prejudice to the husband; b) from the profit which she makes from her own labor, or by exercising a business or art; c) by diminishing accustomed expenses, caring more diligently for the family estate, and living more sparingly as much as can be done according to her condition, to which, when another means is lacking, she is even held; d) by applying to the adulterous offspring the alms which she can make according to her state, or by seeking an alms from the husband for a poor blood-relative; e) by secretly taking, as far as she safely can, from the goods which are going to come to the adulterous son or have already come, and by compensating the legitimate children with them; f) or also, by prudently giving to the illegitimate son the counsel of religious life.

3. If it is possible for the adulterous offspring to be educated in a hospice or foundling home without suspicions arising, care must be taken that it be done in this way, since thus the expenses of education are greatly limited and the division of inheritance is avoided. Nor is there an obligation of making restitution to the hospice, except in the case in which it is supported by the public expenses alone of the city and is destined exclusively for poor infants, and the parents are not truly poor.

4. Regularly, even if it is necessary for avoiding damages or for making restitution, the mother is not held to manifest her crime: she is not held, namely, with danger to life, - nor with danger of graver infamy, unless she is already suspected and has partially lost reputation, - nor with danger of great hatred on the part of the husband and blood-relatives and of graver discord, - nor without hope of fruit, when manifestation will profit nothing, whether because the son will not believe his mother, or because he will not make restitution since it is foreseen that he cannot or will not wish to do this. - Yet she would be held if those dangers of death, graver infamy, and indignation and scandal were absent, and the son were judged likely to believe the mother and to make restitution.

5. An illegitimate son is not held to believe his mother affirming his adulterous origin, even under oath, but can consider himself as legitimate, unless from circumstances or indications the testimony of the mother produces such certainty as suffices in judgment, as if the absence of the putative father at the time of conception is certainly proved. But if it is thus established, the son cannot retain the paternal inheritance, nor the gifts which come to him from error, unless meanwhile he has legitimately prescribed.

6. Damage which in reality has already followed must be repaired as soon as possible. As regards that which has not yet been inflicted but is to be inflicted, the guilty person ought to dispose matters in such a way that at the opportune time he may make restitution, for example, so that everything which the illegitimate child is going to acquire unjustly by inheritance may be returned to the legitimate children: for he is not held now to compensate this damage, because it has not yet been inflicted and because it can happen that the illegitimate son dies before the putative father, and then no damage arises to the legitimate children.

Yet if the adulterer is near death, he is held to make restitution at once, by himself or through another, for the proportion of probability of the life of the illegitimate child, with account taken of his age and strength; - or, perhaps better, to commit to the confessor or another trustworthy man that he restore the whole damage from goods to be handed over to him, in such a way, however, that if the illegitimate child dies before the putative father, he dispose otherwise of the goods received, according as the adulterer has determined.

7. If a dying adulteress wished to commit to the confessor that after death he declare the offspring illegitimate, he cannot accept this, both lest confession be rendered odious, and because the offspring would not be bound to have faith in his words and thus the manifestation would be useless.

389. Remark. - If the husband consented to the adultery, the obligation of making restitution ceases, provided that necessary heirs are not frustrated of their legitimate portion.