COMPENSATION AND REPARATION. - Compensation may be defined as the payment to the injured party of a pecuniary equivalent, that is, of a sum of money corresponding to the measure of the damage. Insofar as the damage finds its measure in a determinate sum of money, it is compensated through the payment of money, to the person who has suffered it, for that same sum. The injured party is thus made whole: the damage, insofar as it has occurred, does not cease to be an accomplished fact, but it is repressed by the attribution to the injured party of its pecuniary equivalent.
The concept of compensation is connected, more or less, to that of substitution: by means of compensation the damage is neutralized, a sum of money being paid to the injured party capable of compensating him through the substitution of the interest affected. The damage is not erased from the world of facts: nor is there created, as happens in restitution in specific form, a situation identical to that which would exist in the absence of the infliction of the damage: rather, there is created a situation simply equal, that is, corresponding, having the same value as that which has been eliminated.
The concept, as well as the institution, of compensation has been considered as coeval with the origins of history, given that the equating 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 conspicuous application. The reaction against the offense to private interests undergoes, in primitive epochs, the following evolution: from individual reprisal carried out upon the person of the offender, at first completely abandoned to itself, and then regulated under the regime of retaliation, one passed to the system of pecuniary composition, whose amount was usually determined by the criterion of the multiple. The penal character was not lost through such an evolution: indeed, the very criterion of the multiple reveals the markedly afflictive character that is proper to penal reaction. In any case, in modern law compensation appears, incontestably, as the typical form of reaction against private damage; and this despite its deficiencies, which may be summarized as follows: 1) it may happen that it imposes on the responsible party a sacrifice not greater, or even lesser, than that which derives from the non-infliction of the damage; 2) grave are the difficulties that stand in the way of ascertaining the amount of compensable damage; 3) compensation proves inefficient with regard to subjects 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, an important place is occupied by compensation for non-pecuniary, or moral, damage. The latter constitutes one of the most discussed topics in the entire field of civil law.
In its own way, compensation performs its reintegrative function also with respect to non-pecuniary damage. If Titius is impaired in his physical integrity, or struck, or insulted, he obtains from the responsible party a sum of money with which he certainly cannot remedy the lost limb or the impaired reputation, nor regain that serenity of spirit that derived to him from intact health or reputation; but, by means of it, he can obtain other advantages, other enjoyments, capable of adequately compensating him, so that, on the whole, the altered balance of his personal happiness recovers its equilibrium once again.
Some writers have judged such characteristics of compensation for non-pecuniary damage as sufficient to alter so profoundly the normal figure of compensation as to call for the existence of a specific and further juridical figure, that of pecuniary reparation. Such a conception found support in art. 38 of the Italian Penal Code of 1889, which established: "In addition to restitution and compensation for damages, the judge, for every offense that wounds the honor of the person or of the family, even though it may not have caused damage, may award to the offended party, who so requests, a sum determined by way of reparation." The clause "even though it may not have caused damage" was interpreted in the following sense: even though it may not have caused compensable pecuniary damage. Precisely for non-pecuniary damage, withdrawn from compensation, the law provided by means of reparation: there thus derived a juridical figure distinct from compensation (art. 7, 1st paragraph, of the Code of Criminal Procedure of 1913, broadening the range of offenses to which reparation was applicable, continued to distinguish the latter from compensation). Yet already under the regime of the cited provisions, it was noted how, under the pressure of practice, compensation tended to become one with reparation; and the elasticity of the notion of compensation was brought to light. The Penal Code of 1930, moreover, confirmed this order of ideas, by absorbing the old reparation into compensation; in fact, according to its art. 185, 2nd paragraph, "every offense that has caused pecuniary or non-pecuniary damage obliges the guilty party and the persons who, under the civil laws, must answer for his act, to compensate for it." Since this is an essentially terminological question, it seems appropriate to bow to the explicit language of the legislator; this, moreover, does not at all exclude that, with respect to non-pecuniary damage, compensation presents the special characteristics that have been set forth. The Civil Code in force, like the Penal Code, likewise extends the term compensation to non-pecuniary damage (art. 2059).
For moral questions v. RESTITUZIONE.
Bibliography4 works
Adriano De Cupis