RISARCIMENTO and RIPARAZIONE. — Compensation may be defined as the provision to the injured party of a pecuniary equivalent, that is, of a sum of money corresponding to the extent of the damage. Insofar as the damage can be measured in a specific sum of money, it is compensated by the provision to the person who suffered it of that same sum. The injured party is thus indemnified: the damage, insofar as it has occurred, does not cease to be an accomplished fact, but is redressed by assigning its pecuniary equivalent to the injured party.
The concept of compensation is connected, to a greater or lesser extent, with that of subrogation: through compensation the damage is neutralized by providing the injured party with a sum of money capable of compensating him through the subrogation of the affected interest. The damage is not erased from the world of facts; nor is a situation identical to that which would exist had the damage not been inflicted created, as occurs in specific restitution: rather, a simply equivalent, or corresponding, situation is created, possessing the same value as that which has been eliminated.
The concept, as well as the institution, of compensation has been regarded as contemporaneous with the origins of history, since the equation on which it is based is accessible to the most elementary and primordial psychic faculty. But in truth, in the less evolved stages of law, the institution of private punishment had considerable application. The reaction against an infringement of private interests underwent the following evolution in primitive ages: from individual retaliation carried out against the person of the offender, at first completely left to himself and later regulated under the law of retaliation, there was a transition to the system of pecuniary composition, the amount of which was usually deter-
mined according to the criterion of a multiple. The penal character was not lost through this evolution: indeed, the very criterion of the multiple reveals the markedly punitive character proper to penal reaction. In any event, in modern law compensation appears incontestably as the typical form of reaction against private damage; and this despite its shortcomings, which may be summarized as follows: 1) it may happen that it imposes on the person responsible a sacrifice no greater, or even smaller, than that resulting from not causing the damage; 2) serious difficulties obstruct the determination of the amount of compensable damage; 3) compensation proves ineffective with regard to persons lacking money or other means convertible into money. Poverty, too, has its privileges; and one of these consists in invulnerability with respect to compensation.
In the theory of compensation, compensation for non-pecuniary, or moral, damage occupies an important place. The latter constitutes one of the most debated subjects in the entire field of civil law.
In its own way, compensation performs its restitutive function also with respect to non-pecuniary damage. If Tizio is impaired in his physical integrity, assaulted, or insulted, he obtains from the person responsible a sum of money with which he certainly cannot remedy the loss of a limb or the impairment of his reputation, nor regain that peace of mind which derived from his unimpaired health or reputation; but through it he can obtain other advantages and other pleasures capable of adequately compensating him, so that, taken as a whole, the disturbed balance of his personal happiness may once again recover its equilibrium.
Some writers have judged these characteristics of compensation for non-pecuniary damage sufficient to alter the normal form of compensation so profoundly as to require the existence of a specific and further legal category, that of pecuniary reparation. This conception found support in art. 38 of the Italian Penal Code of 1889, which provided: «In addition to restitution and compensation for damages, the judge, for every offense that injures the honor of the person or of the family, even if it has not caused damage, may award the offended party, upon request, a sum determined by way of reparation». The phrase «even if it has not caused damage» was interpreted in the following sense: even if it had not caused compensable pecuniary damage. It was precisely for non-pecuniary damage, excluded from compensation, that the law provided through reparation: hence there resulted a legal category distinct from compensation. 1 (Art. 7, 1st paragraph, of the Code of Criminal Procedure of 1913, while extending the range of offenses to which reparation was applicable, continued to distinguish it from compensation.) However, already under the authority of the aforementioned provisions, it was observed that, under the pressure of practice, compensation tended to become one and the same with reparation; and the flexibility of the concept of compensation was brought to light. The Penal Code of 1930 then confirmed this line of thought, incorporating the former reparation into compensation; indeed, according to its art. 185, paragraph 2, «every offense that has caused pecuniary or non-pecuniary damage obliges the guilty person and those persons who, under the civil laws, must answer for his act to provide compensation». Since this is essentially a terminological question, it seems appropriate to adhere to the explicit language of the legislature; this, moreover, in no way excludes the fact that, with respect to non-pecuniary damage, compensation displays the special characteristics that have been set out. The Civil Code currently in force, like the Penal Code, likewise extends the term compensation to non-pecuniary damage (art. 2059).
For moral questions V. RESTITUZIONE.