VII. On Dispensation

What is dispensation? - Dispensation is the relaxation of law in a particular case on account of a special cause. For it happens "that some precept, which is for the advantage of the multitude in the majority of cases, is not fitting for this person or in this case; or through this something better would be impeded, or even some evil would be introduced." S. Th. 1. 2. q. 96, a. 1. It obtains its effect as soon as it has been granted. But in order that someone may use it licitly, it is necessary that it be manifested to him, lest by presuming it he expose himself to danger of violating the law, if perhaps it has not been granted.

It differs from a declaration, by which it is declared that this or that case is not comprehended in the law. It differs from license, which has place when the law does not prohibit a thing absolutely, but only conditionally, namely without the consent and approbation of the superior. Wherefore the bond of law is not relaxed through license, but merely the condition is placed, and when it has been placed, the law no longer has place. Then the law is rather observed, for the law in reality commands that license be sought, if such or such a thing is done, namely that the consent of the superior be sought. It differs from privilege, which can be both against law and also beyond law, and, when it is against law, simply derogates from it, and therefore not only for a case, or for some cases in particular, but for all. It differs also from invalidation, abrogation, and cessation of law, because in these the law is extinguished for all. S. Th. 2. 2. q. 147, a. 4.

Note: Power of dispensing given generally falls back into a privilege beyond law, and is favorable, and therefore has a broad interpretation, but not an extensive one. Generally, for when given particularly it is of strict interpretation. For general power is necessary for the common good and looks to it; not so particular power, which is rather a certain begun dispensation. But dispensation, because it derogates from law, is odious, and is of strict interpretation; unless it is owed, or was granted motu proprio, or to a community, or for the common good, or inserted in the Body of Law. Strict, but not restrictive, unless perhaps the right of a third party is injured. But it must never be interpreted in such a way that it becomes useless or burdensome to him to whom it was granted. R. 61 de R. I. in 6. L. 187, 192, 194, 195.

What things are required for dispensation? - It is necessary that he who gives the dispensation give it knowingly and willingly, but one extorted by fear is valid; and that he to whom it is given, regularly speaking, accept it. For a benefit is not given to one unwilling. L. 1. 9 de Donat. But we must understand as unwilling also him who does not consent. L. 8 § Invitus de Procur. Hence, if another has sought an ordinary dispensation of an impediment, and the spouses, ignorant of this, contract marriage, that dispensation does not profit them. In the case, in itself, it suffices that one accept the dispensation, since a granted dispensation necessarily affects both. But it can be given and accepted even tacitly, and by the fact itself. Regularly speaking, for absolutely one can be dispensed even while ignorant and unwilling. Since it belongs to the legislator to bind and to loose. L. 184, 187; Sanch., de Matr., l. 3, c. 36, n. 3.

On the part of the one granting it, a just cause is required; otherwise the superior would not be a faithful guardian of the law, but an imprudent dissipator. Moreover, natural right dictates that a part ought to be conformed to its whole, unless a just cause excuses. Without a just cause, a dispensation given by the legislator himself is indeed valid, although illicit; but by an inferior, or by a delegate, both illicit and invalid. For the legislator has as his own the power of binding and loosing, to which that just cause is extrinsic; but he is not considered to communicate it to an inferior or delegate except that he use it reasonably. Yet both the legislator dispensing without cause sins lightly, and the dispensed person seeking it; but he who, the law having been removed by dispensation, uses it, does not sin even lightly. For neither the former in giving nor the latter in accepting do injury to anyone, although they injure legal justice. But a delegate dispensing without a just cause in a grave matter sins gravely, since he gravely abuses the power conceded to him. In a grave matter, for in a light matter it does not exceed venial fault. But on the part of the petitioner it is required, both for liceity and for validity, that a true cause be present, since the superior does not dispense unless the petitions rest upon truth. Trent, s. 25, c. 18 de R.; S. Th. 1. 2. q. 97, a. 4; 2. 2. q. 88, a. 10. Moreover, a cause probably just suffices, both for seeking and for granting a dispensation, validly and licitly, lest the matter be too anxious and liable to scruples. Nor indeed is it necessary that it be as great as would suffice of itself for excusing; otherwise the power of dispensing in the superior would become altogether useless. "A cause is the dignity of the petitioner or of the superior, so that he may show himself benign, and also common or private utility and similar things. But in dispensations of impediments for marriages, the payment of money in aid of the Church suffices as a cause, as is the practice." L. 195. Matrimonial dispensations of lesser degree are now granted from reasonable causes approved by the Holy See, and are subject to no challenge. Ord. serv. in Rom. Cur., Norm. pecul., c. 7, a. 3, n. 21. L. 178, 181, 182, 186, 192, 195; l. 3, n. 251; l. 7, n. 353; S. Th. 1. 2. q. 96, a. 6; q. 97, a. 4; 2. 2. q. 63, a. 2, ad 2; Wirceburg., c. 5, a. 2; E. M.

When a just cause exists, is the superior held to dispense? - R. Negatively: if the cause is only sufficient, so that dispensation is permitted; and the superior can either give it or deny it, or give it to one and deny it to another, for it is a mere grace, and therefore free. Moreover, just as dispensation profits the subject, so denial of the same profits the common good.

R. Affirmatively, if the cause renders the dispensation necessary for avoiding common damage, or private damage of great moment, or for procuring common utility, or great private utility; otherwise he would sin gravely or lightly according to the matter; for this is why the power was given to him. "Nevertheless, when dispensation has been denied, even unjustly, the subject cannot act against the law; unless such a case urges as to draw it out from the law. Wherefore if a Bishop unjustly denies dispensation from publications before marriage, from an urgent grave cause it can be contracted without them." L. 179; S. Th. 1. 2. q. 97, a. 4.

In doubt whether a case needs dispensation, is it necessary? - R. Negatively in positive doubt; for the extension of the law to that case remains uncertain. - R. Affirmatively in negative doubt concerning the existence and sufficiency of an excusing cause; for the certain law possesses. But negatively in negative doubt concerning the necessity of dispensation; for then, on the contrary, liberty possesses. L. 97, 180, 192, 195; l. 3, n. 325; l. 4, n. 154; H. A. tr. 2, n. 51.

Is it licit to use a tacit, presumed, interpretative dispensation?

R. To the first: Affirmatively, for the will of dispensing is truly present in the superior; since a tacit dispensation is had when the superior wills something with which dispensation is connected, or when, knowing and able to contradict, he does not contradict.

R. To the second: Affirmatively, for then also the will of dispensing is truly present in the superior, as is reasonably presumed from the hypothesis; for example, if, knowing that you are excommunicated, the prelate confers a benefice upon you. This presumed dispensation, presumed concerning the present, falls back into tacit dispensation.

R. To the third: Negatively, for there is not present, nor does any reason persuade that there is present in the superior, the will of dispensing, but only a reason is present that such a will would be present in the superior if he knew the matter. Yet in matters of lesser moment one could then more easily use epikeia. Nor does it matter that a presumed license concerning the future is valid; for for actions which require for their validity a positive act of the will, an interpretative voluntary is not sufficient, as happens in dispensation, since relaxation of law requires the positive consent of the superior. On the contrary, for actions for which it merely suffices that the superior not be unwilling, as in the case of license to be sought, an interpretative voluntary suffices. L. 187; l. 3, n. 288; Struggl, tr. 1, q. 1, n. 21; Sanch., de Matr., l. 3, d. 35, n. 16, 24.

Who can dispense, and with whom? - R. To the first: Since dispensation is the relaxation of law, it is clear that it is an act of jurisdiction. Wherefore only he can dispense by ordinary power who made the law, or his superior, or successor; but by delegated power, he who has received from these the power of dispensing. The reason is that the legislator has as much power for loosing as for binding; he has equal power with his predecessors; finally he has the power of inferiors subordinated to himself. But an inferior has no power over the law of his superior.

The legislator cannot dispense even in his own law, if the law passes into a contract. For pacts are to be observed by all. But an inferior can dispense in the law even of a superior, if dispensation is generally permitted in the law, e.g., if it is said "until he is dispensed," if custom has prescribed it, if it is commonly admitted by theologians. Hence validly and licitly an inferior, by ordinary power, dispenses from a just cause in the law of a superior: 1. Concerning light things, i.e., those which do not oblige under mortal sin, even if recourse to the superior is easy. 2. In cases which occur frequently, and in doubtful cases. 3. When there is urgent necessity, recourse to the superior is difficult, and there is danger in delay. 4. Man cannot dispense himself from divine and natural law on account of his own preservation.

By ordinary power, delegated. Ordinary power is that which belongs to someone by force of his dignity, or of his office; delegated power, that which belongs by concession of him who has ordinary power. If delegated power is granted by law, it is equated with ordinary power, as being annexed to office and dignity; but if it is only from a superior, it is purely delegated. - L. 90, 190-192; l. 6, n. 902.

R. To the second: Dispensation can be made only with those who are subject to the jurisdiction of the one dispensing; for example, with inhabitants having domicile, whether they are in their own territory or outside it, L. l. 7, n. 81; with resident strangers, as long as they have quasi-domicile in the territory, S. O., 22 Nov. 1865, A. S. S., vol. 2, p. 671, who, once a dispensation has been obtained, can use it even when they go abroad, Suarez, l. 8, c. 26, n. 12; with wanderers, as long as they are staying in the territory, Bened. XIV, Not. 33, n. 10; indeed even with travelers, since travelers also by access to the local superior sufficiently become subjects while they are in foreign territory, and since this dispensation is personal, it adheres to the person, and therefore follows the traveler even outside the territory or diocese of the one dispensing, cf. 298; finally with themselves, although they have only delegated power, but general. The reason is "because it is purely voluntary jurisdiction, which can be exercised even toward oneself. Hence one can well dispense oneself in vows, oath, fast, etc." L. 183. General, because no one is excepted in a general faculty, in whatever way it is had. But it is otherwise if someone has been delegated only for particular cases. - L. 158, 183; l. 3, n. 262; E. M.

Can the Pope dispense in divine law? - Those things which are prohibited by divine law are of a threefold class. For there are objects evil in themselves, and by reason of themselves. And these can never become not evil and licit. There are objects evil in themselves, but by reason of danger, or by reason not of the very being of order but of the perfection of this order. And these, when the danger has been removed and on account of peculiar circumstances, can become not evil and licit. Finally, there are objects evil in themselves, but on account of another's right. When this right ceases, from the fact that someone has power over that right, that which otherwise is illicit can be rendered licit.

Therefore the Pope can dispense from a just cause in those things in which divine right arises from human will, as in vows and in oaths. For it is certain that in these he acts in the place of God. Hence it is that dispensation in a vow or oath, without a just cause, even when made by the Pope, is invalid. In the rest it is disputed whether he can truly dispense from a most grave cause, or only declare that divine right then ceases. In practice it matters little. In the rest, namely in those in which he can dispense; for he cannot dispense in all, as is clear from what was set down at the beginning, but only in some, e.g., in betrothals, in ratified marriage, etc. But always except laws which pertain to the essential constitution of the Church, laws concerning the forms and matters of the sacraments, concerning the offering of sacrifice, etc. Nevertheless in doubtful matters the Supreme Pontiff can infallibly declare divine and natural right. Therefore that phrase, "Whatever you shall loose," etc., is not unlimited, but must be restricted to those things which pertain to the spiritual good of the Church and of souls. Cf. 180. L. 180, 188, 189; S. Th. 1. 2. q. 100, a. 8; 2. 2. q. 88, a. 12; q. 89, a. 9, ad 3; S. q. 65, a. 1, 2, 4; q. 67, a. 3; Quodl. 4, 13; Struggl, q. 4, n. 11; E. M.

In what laws can Bishops dispense? - By ordinary right, they can dispense in their own dioceses from laws enacted in provincial synods, since it has been so introduced by custom, C. Cum contingat 13 de For. comp., provided they are not specially reserved to the Council. Likewise they can dispense in all episcopal and synodal statutes, and indeed independently of chapter and clergy. Nor is it an obstacle that the provincial Council, or diocesan synod, was approved by the Apostolic See. For that approbation is not specific and absolute, such that the individual things are rigidly examined, known, and approved motu proprio and with certain knowledge. But it is ordinary, common, and conditional, if canonically, etc.; and this indeed gives no new right, for only the decrees of the Council, legitimately established and which of themselves have the force of obliging, are confirmed; and the review of them made by the S. C. C. is only a condition without which they cannot be promulgated. Bened. XIV, de Syn., l. 13, c. 5. Moreover Bishops dispense by their own right in Pontifical laws also enacted for their diocese, for they are held as diocesan laws. But from episcopal and synodal statutes the chapter can also dispense, when the See is vacant, since it succeeds into the place of the Bishop. The same cannot be done by the Vicar General of the Bishop, without special delegation, since he does not have this from his own ordinary right; since in a general commission the faculty of dispensing is not understood.

Bishops cannot, however, dispense in a synodal taxative law of the congrua for those to be ordained. The reason is that Innocent XII, B. Speculatores, established that "the benefice be of such income that, for suitable support of life, whether according to the synodal assessment, or, if it is lacking, according to the custom of the region for those to be promoted to sacred orders, after burdens have been deducted, it suffice by itself, and that it be peacefully possessed by the one to be ordained." Wherefore the Pontiff implicitly takes away from the Bishop the faculty of dispensing in this matter, or rather of arbitrating, or of making the calculation in his own way. But because every power, and especially spiritual power, is given not for destruction but for edification, from the very nature of ecclesiastical laws, and from the presumed will of the Roman Pontiff, as well as from custom, Bishops dispense also in common laws: 1. when the matter is light; 2. as regards doubtful cases; 3. as regards cases which often occur, as in most vows, the divine office, observance of feasts, abstinence, fasting, with private persons and in particular cases. - Likewise they dispense in other Pontifical laws also, whenever recourse to the Supreme Pontiff is not easy, and there is grave danger in delay, e.g., in impediments of marriage, in irregularities, in vows reserved, etc. But they can dispense in Pontifical laws if in the law itself it is said that dispensation can be made from it; for if these words signify anything, and permit dispensation, they certainly permit it to inferiors, namely to Bishops. - Matrimonial dispensations, however, are excepted, cf. Trent, s. 24, c. 5 de R. M., from the practice and Style of the Curia, and also from the Constitution of Pius X, Sapienti consilio, and Ord. serv. in Rom. Cur., or if by law the Ordinaries themselves were the ones to dispense, as is seen in the case of a Bishop ordaining a bigamist, C. Super eo 2 de Big. L. 180, 190, 191, 192; App. 2, n. 54 ff.; l. 6, n. 613, 902; H. A. tr. 2, c. 6, n. 57; De Iustis, de Dispensat. Matrimon., l. 2, c. 2, n. 45 ff.

Note: A Bishop is said in the preceding cases to dispense by ordinary right, because such a faculty belongs to them by force of their proper office, to which it is perpetually annexed, and therefore they can well delegate it to another. - It must be furnished gratis by whomever the dispensation pertains to. Trent, s. 25, c. 18 de R. In doubtful cases the Bishop can declare that the case does not need dispensation, or dispense for caution. - Concerning dispensation for caution, Benedict XIV notes these things, Not. 101: "Diana wisely remarks that dispensations of this sort are granted by the Sacred Penitentiary or Datary not as necessary, but so that the faithful may be rescued from every scruple and anxiety of soul." Such a dispensation will then, regularly speaking, not be necessary; but it is very useful; for if perhaps afterward the truth appears, nevertheless one truly remains dispensed. L. 190, 192, 193; l. 6, n. 613; de Priv. 57, 58; Struggl, q. 4, n. 12; Sanch., l. 8, d. 6, n. 18. Besides these ordinary faculties, Bishops often have many other extraordinary faculties for three years, for five years, etc.; these delegated faculties they can also regularly subdelegate to others. Cf. 254.

Can pastors dispense in some things? - By ordinary right they can, by reason of custom, dispense with subjects, only for particular cases, in fasts, in abstinence, in works prohibited on a feast day, and in other similar matters which frequently occur and need prompt dispensation. By reason of custom, for they do not have jurisdiction in the external forum. By ordinary right, since this faculty has been attributed to them by reason of office, as being exercised in cases which frequently occur. Indeed they can even dispense in graver matters, in which Bishops can dispense, when a most grave necessity stands, if the Bishop cannot be approached and there is danger in delay. L. 190, 192; l. 3, n. 288; l. 6, n. 613; H. A. 59.

Can regulars dispense in some things? "Regular prelates have the power of dispensing (in particular cases) with their subjects in ecclesiastical precepts, as Bishops can with their diocesans. For they themselves have quasi-episcopal jurisdiction, as the doctors commonly teach.... And the same holds as regards the rules of religion." L. de Privil., n. 106, 108. "Confessors of the Mendicants, and other regulars communicating with them, have the power of invalidating, remitting, and dispensing oaths and vows. They can besides dispense with spouses as regards the impediment to petitioning the debt, on account of incest committed with a blood relative of the spouse. But it must be noted here that the confessor must obtain special license in this matter, and at least from the lower superior of his monastery. Moreover Mendicant confessors can dispense with spouses in a vow of chastity, elicited before marriage, for petitioning the debt, just as also in a vow elicited after marriage. They themselves can dispense in all vows in which Bishops can, by ordinary right, dispense with their subjects." L. ib. 109; l. 1, n. 194; l. 3, n. 257, 258; l. 4, n. 63, 64; l. 6, n. 987, 1076, 1127, 1128; La-Croix, l. 3, p. 2, n. 1310; Struggl, q. 4, n. 13.

Whether dispensation can be given in the external forum, or in the internal forum? - Dispensation can be given in the external forum, since if the bond of law is constituted in the external forum, the loosing of that bond can also be given in the same forum. And thus dispensation from abstinence, which is given by indult during the time of Lent, is given in the external forum. - It can also be given in the internal sacramental forum; for in the sacramental forum all those things which pertain to spiritual salvation can well be treated. It can likewise be given in the internal forum of conscience, although not sacramental; for as sins properly pertain to the sacramental forum, so to the forum of conscience pertain all things which look to the spiritual salvation of each one.

But this essential difference intervenes between the sacramental internal forum and the merely internal forum of conscience: that in the former matters are treated among those present; in the latter matters can also be handled among the absent. The forum of penance is also distinguished; but this, according to some, is the sacramental forum; according to others, it is the forum of conscience. Wherefore what is committed to someone in the forum of penance, apart from absolution of sins, e.g., dispensation from fast, abstinence, etc., can also be expedited outside the sacrament of penance, although the mandate is directed to a priest confessor. - Suarez, l. 8, c. 6, n. 15, 16; Salm., tr. 18, c. 1, n. 33; Schmalz., l. 2, t. 2, n. 2; L. 194; S. Th. 1. 2. q. 97, a. 4.

When does dispensation cease? - Dispensation ceases: 1. By revocation; for by it the bond of law is restored. Wherefore a revocation made by the legislator, even without cause, is valid. Made by a delegate, even from a just cause, it is not valid; for once the dispensation has been given, he has completed the delegation accepted. Made by an inferior prelate, when he granted it by ordinary right, if from a just cause, it is valid; otherwise, however, if without a just cause, because he cannot restore the law of a superior. For the Superior is not considered to have granted a faculty for such revocation. Of law; for if the obligation depends not on law, but on one's own will, as in vows, it cannot be restored without this will. A prelate revoking a dispensation without just cause sins in itself only venially. L. 197. 2.

By renunciation, which is valid immediately in those things which have force from one's own will, in vows, oaths, etc. But in those things which obtain effect from law, e.g., in impediments of marriage, in the canonical hours, etc., it is valid when it has been accepted by the superior, who can restore the bond of law. - L. 198. 3. When the motivating cause totally ceases, if the dispensation has a successive course and was not given absolutely, as, e.g., dispensation from the law of abstinence on account of infirmity.

But otherwise, if the dispensation was given absolutely, although, with attention to the matter, it can have a successive course; or if it was perfected by one act, e.g., if someone was dispensed from irregularity on account of the poverty of parents, or on account of uprightness of morals, or on account of scarcity of ministers. Wherefore one who was absolutely dispensed from a vow of chastity, when the spouse has died, can marry another; but if the dispensation was granted for a special case, he needs a new dispensation. Absolutely; if the cause is judged perpetual, then the dispensation is considered to have been given absolutely, even if afterward by accident the cause ceases. But otherwise if the cause is judged to last only for a time. 4.

If some commutation of burden was joined to the dispensation, then also, when the cause ceases, the dispensation does not cease. - Likewise dispensation does not cease: 1. By non-use, or contrary use, whence one will always be able to use it afterward, since these cannot restore the bond of law. 2. By leaving the territory of the one dispensing, because what has legitimately been done ought not to be retracted, even if afterward that case occurs from which a beginning could not have been had. 3. By the death of the one dispensing, whoever he may be, whether a superior or inferior prelate; since dispensation is a grace made, and a grace made does not expire by the death of the one granting it, or by his removal from office. C. Si super 9 de Off. et pot. iud. del. in 6. The same holds concerning licenses granted. - R. 73 de R. I. in 6; L. 195-198.