§ 2. On the Requisites for Legitimate Dispensation

For legitimate dispensation, that is, for dispensation which is at the same time valid and licit, several things are required: either a) on the part of the one conceding, or b) on the part of the one asking, or of the subject to be dispensed.

237. PRINCIPLES. I. For valid dispensation there is required, on the part of the subject to be dispensed: that the petition be neither subreptitious nor obreptitious, as regards the motive causes set forth, and that the dispensation be accepted by the one dispensed. The reason: otherwise the will of the one conceding is lacking (cf. n. 239).

We said 1. That it be neither subreptitious nor obreptitious, in the sense explained above, n. 228.

But in matrimonial matters, although the Sacred Congregations require that all things be faithfully declared, nevertheless a dispensation is valid if, for a lesser degree, a greater is indicated. See the things to be said n. 2051, 4. Cf. Genicot-Salsmans, II, n. 524.

2. As regards the motive causes set forth, but not as regards impulsive causes.

For motive causes are given, which pertain intrinsically to the matter, and render the dispensation legitimate and fitting in itself, for example, poverty alleged so that someone may be freed from a vow of giving 1000 gold pieces. Impulsive causes are also given, which, taken from extrinsic circumstances, dispose the Superior toward the act of dispensing, for example, nobility alleged so that someone may more easily obtain a dispensation.

But go to the point: Falsity and reticence then only render a dispensation invalid if they regard motive causes, because the consent of the Superior depends on truth, which in these alone is sought and required (I, n. 185).

These things are rightly said if the matter concerns a dispensation given. But if someone is committed to giving it, and he discovers that falsity is present in the impulsive causes, he ought to recur again to the one delegating, so that he may licitly use the faculties. Lehmkuhl, I, n. 265.

3. That the dispensation be accepted. The reason: ordinarily the Superior intends to make a grace only to one consenting. These things Sanchez, Wernz (apud Linz. Quart. Schrift, 1911, p. 127), and this opinion is more common and more conformable to the decrees of the Holy See. Therefore, if a dispensation is sought for one not knowing or unwilling, it is necessary that his consent be added (I, 186, 10.).

238. From these things you will gather: 1. A dispensation granted from a true cause to some wicked man whom the one dispensing judged upright is valid, although it would have been the case that he would not have dispensed if he had known his wickedness. The reason is, because uprightness is not held as a motive cause, but merely as impulsive; unless the opposite is positively clear.

2. A dispensation is valid if, among several false causes, one true cause is alleged which suffices for dispensing. Likewise, in doubt whether a cause obreptitiously alleged was motive or impulsive, true or false, sufficient or insufficient: because after the fact one must stand for the value of the act.

3. A dispensation is valid if a cause, false at the time of petition, has become true at the time of concession; but not vice versa (cf. n. 2052). Hence it is valid, for example, if in the rescript of the one dispensing an error has crept in from the carelessness of an amanuensis; because it supervenes upon a concession already made. Cf. Pyrrh. Corrad., Praxis dispens. Apost., l. 7, c. 6, n. 24. If the matter concerns a grace to be made, the causes ought to be true at the time when the commissary fulminates the dispensation.

4. A petition does not become subreptitious for this reason, that before a Superior of higher Order the denial on the part of the Superior of inferior grade is kept silent.

239. II. For valid dispensation, on the part of the one conceding, it is required that he could and willed to dispense. The reason is clear of itself.

It is required 1. THAT HE COULD, according to the things set forth n. 230 ff. Wherefore it must be noted that a subaltern Superior cannot validly dispense in the law of a Superior without a just cause; because he is not presumed to have received the power of dispensing rashly and inequitably. It is otherwise, however, if a Superior wills to dispense in his own law or in the law of an inferior; because the law itself depends entirely on his will. It must be noted besides that the faculty of dispensing has not been taken away from a subaltern Superior by the fact that his Superior denied dispensation to the one seeking it. Except if his express will as regards this is clear.

Hence: 1. The Supreme Pontiff dispenses validly, but a Bishop invalidly, without a just cause, in the common law of the Church, for example, in fasting, abstinence, etc. Therefore St. Thomas rightly teaches (Quodl. 4, 13, c. fin.) that the Pope can dispense that a priest consecrate the Body of Christ without sacred vestments.

2. In the law of God, for example, in vows and oaths, a dispensation made without cause is always invalid (cf. n. 135, 1.). But if a cause is indeed present, yet insufficient, the dispensation will be valid when some commutation has been added (III, 254; H. Ap., V, 40).

3. A dispensation is valid if a subaltern Superior dispenses even in bad faith, judging that a cause does not underlie, which nevertheless in reality exists. On the contrary, it is invalid if he thinks that a cause underlies, which in reality does not subsist, or certainly does not suffice; because the value of the dispensation does not depend on knowledge, but on the existence of the cause, so that the good or bad faith of the one dispensing makes nothing to the matter. Thus St. Alphonsus with Palaus, against Busenbaum and others (I, 181; III, 251; H. Ap., II, 53).

It is required 2. THAT HE WILLED, and signified his will in some way, as is commonly taught. Whence a dispensation presumed concerning the future is not valid, for example, if he knew, he would dispense; because a future will, or one which would be, is not absolutely a will, and therefore does not suffice for dispensation from law, as being strictly to be interpreted, although it suffices for license, as being broadly to be interpreted. Moreover, in matters of lesser moment, one can sometimes proceed more easily by way of epikeia.

Nevertheless, a tacit dispensation is valid, namely from a just presumption of the present will of the Superior. Thus, for example, a Superior who sees a subject act against the law and does not correct him when he could easily do so, is judged to dispense; because in these circumstances, if he does not will to dispense, he is held to speak. But it is otherwise if he cannot correct without inconvenience (I, 187; H. Ap., II, 49).

Note. 1. A dispensation mentally conceded to an absent person is not valid, unless the dispensed person has been made more certain that the one conceding, at such an hour, for example, after he had sought from the Superior the faculty of dispensing, fulminated the dispensation. This mode of acting is full of dangers: whence ordinarily illicit (Gennari, Quest. de mor., q. 262).

2. A dispensation extorted by fear is valid, whenever a just cause of dispensing exists: provided it is not clear that the Superior dispensed without the mind of dispensing; for fear does not take away the voluntary. Nor is it illicit to obtain a necessary dispensation through fear, provided fear is justly struck, for example, by threatening recourse to a Superior if the inferior denies dispensation (I, 184; H. Ap., II, 54).

Do not, however, extend the things here set forth to absolution from censures, which, if it has been given under the influence of fear unjustly struck, is invalid (n. 1287).

240. III. For licit dispensation, both in the one conceding and in the one obtaining, a just cause is required. The reason for the former is, because otherwise the Superior commits acceptance of persons, and gives occasion for complaints, while one is exempted from law without cause, but others are pressed by the same (I, 178). The reason for the latter is, because otherwise the subject asks for an illicit thing, and is guilty of that sin to which he induces the Superior. Cf. Lehmkuhl, Cas. consc., n. 118.

Things to be noted. 1. A Superior can sometimes, from a just cause, concede that which is sought without a sufficient cause. Thus, for example, an undisciplined religious who seeks without cause a relaxation of his simple vows can be dispensed by the Superior on account of the common good, and is in reality released from the vows.

2. The sin of a primary Superior who dispenses without a just cause in his own law, with scandal and notable damage of others excluded, does not exceed venial, because acceptance of persons is not of itself grave fault (I, 178).

But a Superior of inferior grade, if he dispenses in the law of a Superior without cause, except if smallness of matter is present, sins mortally. The reason is usurpation of a power not conceded to him, and especially disturbance of order, from the fact that the subject uses an invalid dispensation (cf. n. 239). St. Alph., I, 180.

3. A just cause of dispensing is that which is proportioned to the gravity of the law from which dispensation is given. Nor, however, is a cause so grave required that it already of itself exempts from the law. It is enough if it is such that the one to be dispensed can be exempted from the common obligation without acceptance of persons. For some causes of themselves excuse from the precept, say of fasting, of the Divine Office, etc.; and these do not need dispensation, if they are certainly or at least probably just (cf. n. 173). But others suffice for dispensation, yet need it. CAUSES of this kind, indeed to be weighed by prudent judgment, are generally either necessity, for example, scandal to be avoided; or piety, for example, copious alms in aid of the Church, as practice bears for matrimonial dispensations; or finally utility, whether common or private. Indeed, a sufficient cause can be the dignity of the one asking, because it pertains to the good of the Church to have eminent persons grateful; or even the dignity of the Superior, that he may show himself benign. This also must be noted, that if several causes are present, of which none suffices separately, all can suffice together (I, 195).

241. Questions. IT IS ASKED 1. Whether, when a just cause stands, the Superior is held to dispense?

Resp. Distinguish. 1. If the cause is only sufficient so that dispensation is licit, but not owed, the Superior can concede it and deny it, or concede it to one and deny it to another; because just as dispensation is expedient for the good of the subject, so also the observance of law is expedient for the common good.

2. If the cause is such that it renders dispensation owed or necessary, the Superior is held to dispense. Otherwise he would sin, gravely or lightly according to the matter (I, 179; H. Ap., II, 52).

And here it must be noted that dispensation is owed either from the disposition of right, which, when such a cause exists, decrees that it must be granted; or from the necessity of the common good, for example, for preventing scandal; or from justice, for example, for avoiding grave danger of soul; or finally from charity, when someone much needs dispensation, and this can be conceded without detriment to discipline.

IT IS ASKED 2. Whether it is lawful for a subject to seek, and for a Superior to concede, dispensation from a doubtful cause?

Resp. 1. It is lawful TO SEEK, and once dispensation has been obtained, the subject can be secure, if he has set forth the cause in good faith; because it belongs to the Superior to judge concerning the sufficiency of the cause (I, 186). But what if he obtained it illicitly? See n. 244.

2. It is lawful TO CONCEDE, in doubt whether the cause is sufficient; because the power of dispensing, unless it is of mere commission, is to be interpreted broadly; and, in doubt, the one dispensing is not obliged to an examination concerning the full sufficiency of the cause. But it is otherwise in doubt whether some cause is present. Yet in each doubt, the dispensation made is presumed valid, until the truth appears to the contrary (I, 178, 192; cf. III, 251; ed. G., I, p. 534).

Note. Since the doubt here concerns the existence of the cause of dispensation, the conclusion concerning the validity of the dispensation had to be different from before, n. 234, II, b, where the doubt concerns the cases themselves, whether namely they need dispensation.