Article — Marc, Institutiones Morales
Article III: On Dispensation
St. Alphonsus, I, n. 178; ed. G., I, p. 163; Suarez, de Leg., l. 6, c. 18; Mazzotta, de Leg., disp. 4; Billuart, Diss. 5; and celebrated Canonists.
- DEFINITION. Dispensation is the relaxation of law, made for a time by legitimate authority, in some case in which otherwise the law would oblige.
It is said 1. It is the relaxation of law; for which reason it differs both from epikeia, through which it is declared that some case was never comprehended in the law; and from permission, through which only the violation of law is not impeded, for example, for avoiding a greater evil; and from license, by which law is rather fulfilled. For license is the consent of the competent Superior, under which the law itself concedes that something be done, for a few acts. Hence, if a Superior gives a nun license to go out from enclosure, or to make some expense, he does not dispense in the law or in the vow, but places the condition without which those things would not be lawful; because the law which prohibits going out and spending does not prohibit this absolutely, but only lest it be done without license. Cf. St. Alph., de Privil., n. 1. - Law of itself tends to firmness; therefore of itself it does not generally admit licenses; nevertheless it sometimes foresees and tolerates them. Therefore, in those cases, if the Superior is absent, his license can be presumed; but dispensation is not presumed (Lehmkuhl, I, n. 266). Cf. below n. 239.
Made by legitimate authority; because dispensation is an act of jurisdiction, and therefore differs both from excuse on account of some extrinsic cause and from cessation of the law, which is said to be from within; in which cases the obligation of the law is taken away without a new intervention of the legislator, namely by force of the will which he previously had in making the law.
For a time, in some case; for which reason it differs both from privilege, which is perpetual and can be according to law, and from derogation and abrogation of law, through which the law is relaxed or taken away in perpetuity, for the whole community.
- DIVISION. Dispensation can be: 1. Valid or invalid, according as it truly exempts from the obligation of law, or not.
Licit or illicit, according as it is obtained with a just cause or without a just cause.
Subreptitious or obreptitious, according as something to be manifested is kept silent in the petition, or, on the contrary, something false is asserted.
Total or partial, according as it exempts from the whole law, or from a part of the same.
Express or tacit, according as it is expressed in words, or is deduced from some fact.
Free or necessary, or obligatory, according as its concession merely befits on account of a just cause, or is owed by force of some title (cf. n. 241, q. 3).
But when a dispensation has been denied, although unjustly, the subject is held to the law, because it perseveres in being in force; unless such a cause urges as of itself exempts him from the law: for example, if the necessity of contracting marriage were urging, the denunciations having been omitted, and the Bishop unjustly denied dispensation (I, 179; H. Ap., II, 52). Nevertheless the dispensation is valid if, having been denied by the Superior, it is conceded by the inferior. Except if the Superior had willed to take this also away from the inferior. Lehmkuhl, Cas. consc., 125.
With these things premised, we shall discuss a little more fully: 1. concerning the power of dispensing; 2. concerning the requisites for legitimate dispensation; 3. concerning the use and interpretation of dispensation; 4. concerning the cessation of the same.