b) On The Reparation Of Damage Arisen From Adulterous Intercourse

151. Principle 1. The adulterer is held to no material reparation if from the adultery neither offspring nor any external damage has arisen. Thus at least before the sentence of a judge.

This is plain from the first principle explained above.

Note. When the adultery committed has remained secret, and no other material damages have arisen from it, then each accomplice is to be warned to observe deep silence, because otherwise the greatest quarrels easily arise.

152. Principle 2. If the adultery was perpetrated with each accomplice consenting, then each adulterer in solidum is liable to the reparation of all damages arisen.

The material damages which can arise from adultery are chiefly: expenses for the childbirth and education of the offspring conceived, the portion of inheritance which will come to the spurious offspring and will be taken away from legitimate offspring, and diseases caused from the carnal intercourse itself.

Of itself indeed each adulterer (i.e., the adulterous man and the adulterous wife) is held to repair half of the damages; but if the one cannot or does not wish to repair the other half, the first adulterer is held to repair the whole damage. For each adulterer is the unjust cause of all the damages.

As to inheritances, legacies, and gifts which come to adulterine offspring reputed legitimate, a distinction must be made: a) All inheritances and legacies which come from the putative father (or from the paternal line) by intestacy must be restored. This is plain, because by this the strict right of the legitimate children or of other necessary heirs is injured. b) All inheritances and legacies which fall to adulterine offspring from the mother (or from the maternal line) are not to be restored, provided the civil law does not exclude that offspring from the hereditary succession of the mother.²¹⁰ c) All inheritances, legacies, and gifts which come to adulterine offspring not by intestacy nor by force of law, but by force of the free disposition of donors, need not necessarily be restored. For although such or similar donations would not have come to the adulterine offspring if his condition had been known, nevertheless from this commutative justice is not injured with respect to the legitimate children, inasmuch as they do not have a strict right to those free donations. But if the adulterine offspring certainly knows his own condition, he himself cannot receive or retain donations of this kind, as having been made from error.²¹¹

The adulterous wife ought to make reparation of the damages from paraphernal goods or other goods of which she has free disposition. But if she does not have free goods, she is held by greater labor and industry to repair damages both to the husband and to the legitimate children, insofar as this is possible. Usually, however, the adulterous wife is not held to manifest her crime for avoiding the damages of the husband or children. For such a manifestation is accustomed to cause great quarrels, indeed perhaps divorce. Besides, the common adage says: No one is held to defame himself; and Innocent III established: "To a woman who, while the husband is ignorant, has conceived offspring from adultery, although she fears to confess this to her husband, penance is not to be denied.... But competent satisfaction ought to be enjoined upon her by a discreet priest."²¹² If nevertheless the adulteress were of such lost reputation that confession of the adultery would not cause grave damage to her, she would be held to make it known in order to avoid grave damages otherwise arising to others.²¹³ But that case is rare.

As to the manner and quantity of reparation of damages to be made by adulterers, great prudence is necessary. Adulterers ought first of all to inquire what up to now the putative father has expended in the support and education or even dowering of the illegitimate offspring, if perhaps that offspring has already assumed a state. All these damages must be made good to the putative father. But as to those things which the legitimate children will be able to suffer if afterward the illegitimate son receives an equal portion of inheritance from the putative father, the adulterers ought to make dispositions for these damages to be made good to the legitimate children. But they are not held even now to make good these damages, because it can happen that the illegitimate son dies before the putative father, and then no damage arises to the legitimate children. But what must be done if the adulterer now is near death, but on the contrary both the putative father and the illegitimate son are still in good health? Certain authors (Navarrus, Soto, Billuart) think that then the adulterer is not held to repair the whole damage perhaps about to occur, but only a certain part according to the prudent judgment of a man. Perhaps it would be better if then the dying adulterer committed it to the confessor, that he, when the case occurs, should make good from goods handed over to him the damages arisen. But if the illegitimate son should die before the putative father, then the confessor ought to dispose otherwise of the goods received, according as the dying adulterer shall have determined. But let the confessor proceed with the greatest prudence and, for greater security, exact from the penitent that, necessity demanding it, he himself not be held to the sacramental seal. But if he foresees that some grave damage is going to occur, it is better that he tell the penitent that he is not held to repair the damage with so great a damage to himself.

Things to be noted for the practice of the confessor. From what has been said it is plain how many things must be considered by the confessor if it is a question of restitution arisen from fornication or adultery. Therefore let the confessor proceed in order as follows:

1. Let him investigate whether from fornication or adultery truly certain and unjust material damage has been caused.

2. Then let him investigate how great that damage is which has already been suffered up to now.

3. Finally let him investigate how great a damage is going to arise in the future for legitimate offspring, for the spouse who is the other party, and for others.

4. If there is question of a dying penitent, let the confessor proceed most cautiously and not assume the restitution to be made in the name of the penitent under the sacramental secret.²¹⁴

²¹⁰ The German Civil Code § 1705 and the Swiss Civil Code a. 324 and 461 concede to illegitimate offspring the right of taking an inheritance from the mother and her blood relatives. The Austrian Civil Code § 754 indeed grants inheritance from the mother, but not from her blood relatives. The French Civil Code a. 762 and the Spanish Civil Code a. 845 exclude adulterine offspring from every legal hereditary succession and concede to him nothing except support.

²¹¹ Cf. Billuart, De iure et iust. diss. 10, a. 11, appendix 3.

²¹² c. 9, X 5, 38; cf. also Billuart, l.c. a. 11, and St. Alphonsus, Theol. mor. l. 3, n. 653.

²¹³ Cf. St. Alphonsus, l.c.

²¹⁴ Cf. Billuart, l.c. We have written more broadly on this matter in Linzer Theol. Quartalschrift 1916, 807 sqq.