COMPENSATION AND REPAIR
Compensation may be defined as the provision, to the injured party, of a pecuniary equivalent, that is, a sum of money corresponding to the measure of the damage. When the damage is measured in a specific sum of money, it is compensated by the payment of that same sum to the party who has suffered II. The injured party is thus made whole: the damage, as an accomplished fact, does not cease to exist, but is offset by the attribution to the injured party of its pecuniary equivalent.
The concept of repair is more or less connected to that of substitution: through compensation, the damage is neutralized by providing the injured party with a sum of money capable of compensating through the substitution of the interest that has been harmed. The damage is not erased from the realm of facts, nor is a situation identical to that which would have existed had the damage not occurred created—as happens in specific reparation. Instead, a simple situation is created, equal in value to the one that has been eliminated.
The concept, as well as the institution, of compensation has been considered coeval with the origins of history, since the principle of equivalence on which it is based is accessible to the most elementary and primordial psychic faculty. In truth, in the less evolved stages of law, the institution of private vengeance was applied. The reaction against offenses to private interests underwent the following evolution in primitive eras: from individual retaliation carried out against the offender’s person—first entirely unrestrained and then regulated under the law of talion—there was a shift to the system of pecuniary composition, whose amount was usually determined by a multiple of the harm. The penal character did not disappear through this evolution; indeed, the very criterion of the multiple reveals the markedly afflictive nature proper to penal reaction.
In any case, in modern law, compensation incontestably appears as the typical form of reaction against private harm, despite its deficiencies, which may be summarized as follows: 1) it may impose on the responsible party a burden no greater, or even less, than that which would result from not causing the harm; 2) there are serious difficulties in ascertaining the amount of compensable damage; 3) compensation proves ineffective with regard to subjects lacking money or other convertible means. Even poverty has its privileges, one of which is invulnerability 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 topics in the entire field of civil law.
In its own way, compensation fulfills its reintegrative function even with respect to non-pecuniary damage. If Tizio is physically injured, struck, or defamed, he obtains from the responsible party a sum of money with which he cannot, of course, remedy the loss of a limb or the damage to his reputation, nor regain the peace of mind that came from intact health or reputation. Yet through this sum, he can obtain other advantages, other enjoyments, capable of adequately compensating him so that, overall, the altered balance of his personal happiness regains its equilibrium.
Some scholars have deemed these characteristics of compensation for non-pecuniary damage sufficient to so profoundly alter the normal figure of compensation as to require the existence of a specific and additional legal figure, that of pecuniary reparation. This conception found support in Article 38 of the Italian Penal Code of 1889, which stated: “In addition to restitution and compensation for damages, the judge, for any crime that offends the honor of a person or family, even if no damage has been caused, may assign to the aggrieved party, upon request, a determined sum by way of reparation.” The phrase “even if no damage has been caused” was interpreted as meaning “even if no compensable pecuniary damage has been caused.” Precisely for non-pecuniary damage, which was excluded from compensation, the law provided for reparation; hence, a legal figure distinct from compensation emerged. Article 7, first paragraph, of the Code of Criminal Procedure of 1913, expanding the scope of crimes to which reparation applied, continued to distinguish it from compensation. However, even under these provisions, it was noted how, driven by practice, compensation tended to become one with reparation; and the elasticity of the notion of compensation was highlighted. The Penal Code of 1930 then confirmed this line of thought, subsuming the old reparation into compensation; in fact, according to its Article 185, paragraph 2, “every crime that has caused pecuniary or non-pecuniary damage obliges the guilty party and those who, under civil law, must answer for his act, to provide compensation.” Since this is essentially a terminological question, it seems advisable to adhere to the explicit legislative language; this, moreover, does not exclude the fact that, with respect to non-pecuniary damage, compensation presents the special characteristics that have been described. The current Civil Code, like the Penal Code, also extends the term compensation to non-pecuniary damage (Article 2059).
For moral questions V. RESTITUTION.