Morals of the Church
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Section — Marc, Institutiones Morales

§ 4. On the Cessation of Privilege

¶254.
  1. PRIVILEGE CEASES: 1. By the fact itself, either by the destruction of the whole thing or person to whom a real or personal privilege is attached; or by lapse of the time for which it is given; or by defect of the condition under which it is conceded; or finally when the number of cases to which it was limited has been exhausted.

  1. Through renunciation, express or tacit, if the laws thus establish. If the privilege is singular, that is, if it contains a private favor of the person, this person can indeed renounce his own right; but so that the renunciation be valid, it ought to become known to him who conceded the privilege and to be accepted by him. If the privilege is common, as exemption of an Order for religious, the privilege of canon, forum, and competence for clerics, private persons can in no way renounce it.

  2. Through non-use, or contrary use for a space of time sufficient for prescription, if the privilege is odious, and the occasion of using it has offered itself; because, in this case, tacit renunciation of it is judged to be present. Thus, he who has the privilege of not paying tithes, and nevertheless pays them knowingly and freely, loses the privilege. This holds for the external forum; for in conscience he does not lose the privilege who does not have the mind of renouncing. If the privilege is gracious, without burden for others, as the faculty of absolving, dispensing, not fasting, celebrating before dawn, etc., it is not lost through non-use, nor through contrary use, even of a very long time. The reason: because there is no one who has the right of moving a complaint concerning it, or of prescribing against him (cf. A. A. S., III, p. 450).

  3. Through abuse; because he merits losing a privilege who abuses it. Yet for this there is required a sentence at least declaratory, unless the privilege has been given under some condition which the abuse itself takes away.

  4. Through express or tacit revocation. Tacit revocation is made through a new law, although there is no revocatory clause, when otherwise the new law cannot obtain its effect; for a law ought not to be said to have been established as useless. Express revocation is made through clauses inserted into the law. As regards privileges revoked by Trent, see Card. Sanfelice, Fundam. Juris can., P. II, p. 138.

Ordinarily the general clause suffices: notwithstanding privileges, unless these are specially firm, such as are: onerous privileges, or, on account of justice, remuneratory ones, for example, of religious, or ones conceded with clauses which require special mention for derogation, or ones inserted in the Body of Law. But if revocation is said to have been made from certain knowledge, from proper motion, from fullness of power, or if the mind of the legislator is certainly clear, then any privilege whatever is revoked; except onerous ones, namely those conceded on account of a price paid by the privileged person, or on account of a burden imposed on him. For these cannot be validly revoked unless a just cause is present and compensation is given. And Doctors commonly affirm the same concerning privileges remuneratory on account of justice (Salmant., tr. 18, c. 2, n. 26).

Note. Concerning the privileges of clerics, Bishops, and regulars in particular, it will be said in part IV, concerning particular precepts. Meanwhile see more things, if you wish, in St. Alphonsus, or among the Salmanticenses, or in Bouix, de Jure Regularium; Bargilliat, Prael. Juris canonici.

Human ActsLawPrivilegesCessation of Obligation