Section — Noldin, Summa of Moral Theology
Section 2. On Damaging Because of Homicide
465. Prenotanda. a. It is clear that the obligation of restitution arises only from voluntary and unjust homicide; therefore he who kills another by chance or for the sake of defense is bound to nothing.
b. What is here established concerning homicide, with due proportion, also holds concerning damage inflicted by mutilation or wounding.
c. The obligations of the killer pass to his heirs, because they are real obligations inhering in his goods; and likewise restitution which cannot be made to the one killed himself is owed to his heirs, unless condonation has been obtained, because heirs succeed to all the rights of the one killed.
The remission of injury which a dying man grants to the killer is not of itself a condonation of damages or of restitution. In the same way, if the killer is punished by a judge, the obligation of repairing damages to the heirs is not extinguished by this penalty.
d. By homicide the killer contracts two kinds of debts: some toward the one killed because of damage inflicted on the one killed himself, others toward persons joined with the one killed in some way because of damage which followed for those persons from the homicide.
Persons joined in some way with the one killed are: wife, children, parents, blood-relatives and relatives by marriage, friends, the poor, to whom the one killed was accustomed to do good, and creditors. But the damages which occur to these persons joined with the one killed consist in this: that they are deprived of goods which were conferred on them by the one killed, or which they hoped would be conferred, either gratuitously or from debt, such as due support for children, alms for the poor, payment to creditors.
e. The one killed can condone the restitution of damages which the killer inflicted on the one killed himself; but the one killed cannot condone the restitution of damages which the killer inflicted on persons joined with the one killed (whether they are heirs or others), because he cannot remit the rights of others.1
1 Cf. Lugo, disp. 11, n. 63, 64.
466. Obligation of restoring. 1. The killer must repair all temporal damages which befell the one killed himself from the killing before his death.
a. Therefore expenses (necessary, not likewise superfluous) for treatment must be repaired, and emergent damage or loss of profit arising from work omitted or from business omitted during the time of illness.
The loss of profit which must be compensated to the injured man himself, if he lives, is not that quantity which he had profited before the misfortune happened to him, but much less, "because," as Lugo notes, "there is question of profit not held in fact, but in hope; but profits in hope are worth less because of the dangers and impediments which can happen; but especially uncertain are profits from business." It is better to enter a settlement with the injured man concerning this matter, because the quantity of the damage is very difficult to determine.
b. Expenses made for funerals must not be repaired, since they would likewise have had to be made if he had died by a natural death; nor for bodily damages, namely for pains tolerated, or for a member amputated, or for life itself lost, is anything to be restored from commutative justice, because restitution must not be made in another kind of goods unless it has been enjoined by the sentence of a judge.
- Damages inflicted on those persons who are so joined with the one killed that the killing is the cause per se, and not only the occasion or cause per accidens, of those damages must be repaired.
a. To these persons pertain wife, children, and parents,1 to whom support was owed by the one killed: for the damage of those to whom support is owed from piety follows per se from the killing of the father of a family, because they constitute with him as it were one person; and therefore the damage follows proximately and necessarily from the killing.
alpha. In order that the killer must restore to those joined with the one killed, it does not suffice that support is owed to them from piety, but it is required that they truly received it from the one killed: for if they did not receive support from him, either because the one killed could not furnish it on account of incapacity or did not wish to furnish it on account of malice, or because, on account of abundant riches, the father's work was not necessary, they truly suffered no damage from the killing.2 Indeed even in the case in which the family of the one killed is otherwise provided for after his death, by the same reason restitution is not owed to them.
beta. The quantity of restitution which is owed to these persons is not the whole of what they were accustomed to receive before the death of the one killed or to which they would have had a right, but must be determined according to the hope of support. But this hope must be estimated from the conditions of the killed person, namely how long he would still have lived and how much by his skill and diligence he would have profited.3 Yet because of the difficulty of determining the quantity of damage to be repaired by the killer, in practice it will generally be licit to follow the opinion, in itself little probable, which holds that to those joined with the one killed the support must be restored which they were receiving from the one killed, as long as they do not have from elsewhere that by which they may be supported.4
If the widow of the one killed is provided for by a pension paid from the public treasury, she suffers either no damage or little damage; therefore either no restitution or only little restitution is owed to her. In rigor of right, restitution would have to be made to the public treasury. But the public treasury, and the same must be said of an insurance society (of life), perhaps do not urge the obligation of repairing the damage inflicted on them: for concerning cases of this kind, although foreseen, nothing is provided in their statutes.
b. To these persons do not pertain alpha. the poor or pious causes, even if they certainly would have received alms from the one killed; beta. nor other blood-relatives besides those named above: for the damages of those to whom goods came from the mere liberality of the one killed follow from the killing not per se but per accidens, because they do not morally constitute one person with the one killed, and therefore the damage follows only remotely.
1 From C.A. Section 1327, only wife and children.
2 St. Alphonsus, n. 631.
3 Cf. Lugo, disp. 11, n. 42 ss.
4 Cf. St. Alphonsus, n. 631.
467. Whether the killer must repair the damages which befell the creditors of the one killed from the homicide, or whether he must pay the debts of the one killed.
a. Two things first of all are certain: that the killer is not bound to pay to the creditors the debts of the one killed which he in no way foresaw, as is clear; then that he must restore the damages which he so directly intended to inflict on the creditors that the damage of the creditors was the sole cause of the killing: for this intention brings it about that the killing becomes the directly voluntary cause of those damages and therefore a cause per se.
b. In practice the killer is not bound to repair damages which befall the creditors of the one killed but are not intended, because either he did not foresee them, or, even if he had foreseen them, he is the cause of them per accidens: for what follows rarely or only remotely from some action is said to happen from it per accidens.
Theoretically they dispute whether the killer is a cause per se or per accidens of these damages. Those who say that the killing is the cause per se of the damages consequently oblige the homicide to repair the damages if he himself foresaw that the one killed had a certain hope of satisfying the creditors, because they have a right not to be unjustly impeded from obtaining their good.
468. He who kills another in a duel is not bound to restitution, even if he was the challenger, neither toward the one killed nor toward those joined with the one killed, except in the case in which the one killed accepted only to avoid grave damage. The reason for the first is that by freely accepting the duel he implicitly consents to the damages to be inflicted on himself, and by consenting remits to the killer the obligation of repairing those damages; the reason for the second is that he who consents to the duel is himself by his consent the cause that those damages are not inflicted unjustly; the reason for the third is that the challenger compelled the other by force and fear to expose himself to danger.
a. The one killed indeed cannot consent to the damages which are inflicted on those closely joined to him in such a way that the obligation of repairing them is remitted, because he can yield only to his own rights, not to the rights of others. Nevertheless the killer cannot be obligated to repair the damages of those joined with him. For he would be bound to repair them insofar as the killing would be unjust either against the one killed or against his family. But the consent of the one killed brings it about that the killing is not unjust either against the one killed or against the family of the one killed. Not against the one killed, because no injury is done to one knowing and willing; not against those joined with the one killed: for he impeded them from obtaining support, and because support is owed to them not from justice but from piety, the killing with relation to the family would be unjust insofar as by unjust force it impeded them from obtaining support; but since the one killed consents to his own killing, the killer did not by unjust force impede the family from obtaining support.1
b. Since today it not rarely happens that those are challenged to a duel who, because of religion, will not accept it and therefore are foreseen to be deprived of their office with great damage to themselves, it is asked whether those challenging are bound to repair this damage. But the challenge and the rejection of the duel constitute the occasion of the damage, not its cause, which is constituted by the sentence of the tribunal of honor (Ehrengericht), by force of which, dismissed from office, he incurs damage. But from the fact that the challenger foresaw and even intended the damage, the challenge, which of itself is the occasion, does not become the efficacious cause of the damage. Wherefore the challenger is not bound to repair the damage.
1 Lugo, disp. 11, n. 71, 72; Bucceroni, Casus consc., n. 82, 6.