Article III: On Dispensation

St. Thomas, I-II, q. 97, a. 4; q. 96, a. 6; II-II, q. 63, a. 2, ad 2; q. 88, a. 10 and 11, ad 2; q. 89, a. 9; q. 147, a. 4 and ad 1.

381. Dispensation is the relaxation of a law in a particular case made by one having competent public power of jurisdiction (can. 80). It is said:

1. Relaxation, that is, exemption, remission, suspension, removal.

Thus it is distinguished: a) from interpretation and epikeia, which only declare that the law here and now does not obligate (e.g., on account of excusing causes), either according to the sense of the words or against their sense;

b) from permission, which only does not impede nor punish the violation of law;

c) from license, which is had from the fact that the law disposes that something is prohibited, not absolutely, but only, e.g., so that it not be done without the will of the superior at least presumed; once this condition is placed, the law is not suspended but never obligated, e.g., let no one export grain without license, or go out of the house; whence license is a faculty conceded according to law (e.g., can. 1398);

d) from absolution, which is not the remission of an obligation to be fulfilled in the future, but of fault or penalty contracted in the past, and pertains to judicial power, not to legislative power. All these do not take away the obligation itself of the law and are not against the law, but according to the law.

2. In a particular case; for it is given only to some persons, or if to all, not for all time, whence the law remains in the universal or for the community.

Thus it is distinguished: a) from abrogation and derogation, by which a law is extinguished totally or partially but with respect to the community, that is, for all and in perpetuity; b) from privilege, which positively constitutes a right, while dispensation operates merely negatively; moreover, privilege is permanent and stable and is not always against law, but many times beside the law, e.g., the privilege of absolving or dispensing.

3. Made by one having competent public power of jurisdiction.

Thus it is distinguished: a) from invalidation, for which dominative power of a superior over an inferior suffices, and which touches law only mediately; b) from interpretation, which can be made, and from epikeia, which is always made by a private person; for these knowledge can suffice, and power is not necessarily required.

382. Dispensation is given in human law on account of the variation of cases and circumstances, which the legislator cannot foresee: for it happens that a precept which is for the common good as in most cases is not suitable to this person or in this case, because something better would be impeded or some evil would be induced. But it is twofold: simple dispensation, if the bond of the law is simply relaxed; and dispensation with compensation, if some burden is imposed in place of the law, and then it is called commutation. For legitimate dispensation three things are required: power of dispensing, the will of dispensing manifested, and a just cause of dispensing.

383. For dispensation there is required the power of dispensing. - The faculty of dispensing pertains to the public power of jurisdiction. Consequently some have it:

A. Either by ordinary power, that is, by force of office: namely, those who can make laws, in their own laws, and in the laws of predecessors and inferiors; for "every thing is dissolved by the same causes by which it arises." These are the Roman Pontiff with respect to all ecclesiastical laws, and bishops and other local Ordinaries with respect to diocesan laws, even synodal ones (can. 82), unless they have been confirmed in specific form so that the Roman Pontiff has made them his own.

B. Or by delegated power: for an inferior cannot dispense in the law of a superior unless this is conceded to him, because an inferior has no power over the will of a superior, upon which the whole force of the law depends. But inferiors have the faculty:

Either a) by quasi-ordinary power, or by law or custom: these are those who have an office to which law or custom attaches the power of dispensing in certain laws of superiors, namely:

a) Local Ordinaries (bishops and vicars general, while the see is vacant the capitular vicar, prelates nullius, administrators, vicars and prefects apostolic).

These "cannot dispense from the general laws of the Church, not even in a particular case, unless this power has been granted to them explicitly or implicitly" (can. 81); nevertheless it is granted to them implicitly if the law says indefinitely: that it can be dispensed, or until it is dispensed, or also explicitly, as happens for irregularities arising from an occult delict, except that which arises from voluntary homicide or abortion, or another brought before the judicial forum (can. 990), and for penalties latae sententiae, according to the norm of canon 2237. But they can do this generally:

1. in certain lighter causes more frequently occurring: thus, for example, in individual cases they can dispense individual faithful subjects of theirs or individual families, even outside the territory, and in the territory even travelers, from the common law concerning the observance of feasts, and likewise concerning the observance of abstinence and fast, or even both; indeed, from a particular cause of a great concourse of people or of public health, they can also dispense the whole diocese or place from fast and from abstinence, or even from both laws (can. 1245, §§ 1 and 2); likewise for prohibited books (can. 1402); likewise from centenary custom in the recitation of the hours;

2. in cases of urgent necessity, if recourse to the Holy See is difficult and at the same time there is danger of grave harm in delay, and if there is question of a dispensation which the Holy See is accustomed to grant (can. 81), for example, in impediments of marriage (can. 1043 and 1045) and from irregularities, in a case of danger of grave infamy, for exercising orders (can. 990);

3. in doubt of fact, even for invalidating laws, provided there is question of laws in which the Roman Pontiff is accustomed to dispense (can. 15);

4. as regards the laws of a provincial or plenary council, but only in particular cases and for a just cause (can. 82 and 291, § 2).

b) Pastors, by custom now strengthened by law, in the laws concerning the observance of feasts and concerning abstinence and fast.

But only in this way, in individual cases and for a just cause, can they dispense individual faithful and individual families, but not the whole community (can. 1245, § 1).

c) Religious superiors, in an exempt clerical religion.

They are Ordinaries, namely, the general or provincial superior, in certain cases determined by law, yet less frequently than local Ordinaries; and the provincial can dispense from laws enacted in a provincial chapter, the general from laws enacted in a general chapter. Likewise these and the superiors of a house can dispense from laws concerning the observance of feasts, fast, and abstinence, with their inferiors, but only in the manner of a pastor (can. 1245, § 3).

1. Thus in doubt of fact (can. 15), in difficulty of recourse and danger in delay (can. 81-82), from an irregularity from an occult delict (can. 990), for penalties latae sententiae according to the norm of can. 2237, in an urgent case, from individual prohibited books (can. 1402).

d) Confessors, however, cannot do this.

They can only declare laws, but not of themselves dispense in them, unless sometimes this is expressly granted.

Thus by law they are delegated in more urgent occult cases in which the Ordinary cannot be approached: 1) in the case in which danger of grave harm or infamy is imminent, over all irregularities arising from an occult delict, but only for the exercise of the order received, except the irregularity arising from voluntary homicide or from procuring abortion, or another already brought before the judicial forum (can. 990);

2. likewise over the observance of a vindicative penalty latae sententiae, if otherwise the guilty person would betray himself with infamy and scandal; but with the burden of recurring within a month to the competent superior, if it can be done without grave inconvenience (can. 2290);

3. over all matrimonial impediments of ecclesiastical law, except the impediments of the presbyterate and of affinity in the direct line from consummated marriage (can. 1044-1045).

Or b) by purely delegated power, or from man: these are those to whom this has been expressly committed by those who have ordinary or quasi-ordinary power, or delegated power for a universality of causes or with the faculty of subdelegating.

Thus bishops, by force of quinquennial and triennial faculties, can by extraordinary faculty dispense in many things.

Concerning all these the following rules have force.

384. Rules concerning the power of dispensing.

1. He who has ordinary power of dispensing can also commute, just as he can impose one obligation in place of another.

2. He who has delegated power of dispensing can also commute in laws which impose a burden, for example, fast, recitation of the hours; but not in laws which were enacted for other ends pertaining to the common good, for example, for avoiding inconvenience, preserving order, such as impediments of marriage, because compensation can contribute nothing to their ends.

3. He who has the power of dispensing of himself has the power of commuting, unless he is explicitly restricted to dispensing in a certain case.

4. But he who has the power of commuting cannot therefore dispense, nor commute to something less; otherwise he would be dispensing in part.

5. But he who has the faculty "of commuting by dispensing" can commute to something less, but cannot simply dispense.

385. Whom they can dispense. - Of themselves they can dispense with subjects (can. 201, § 1), even with vagi (can. 14, § 2), with exempt persons at least with the presumed consent of their superior (because they are not of a worse condition, according to rule 61: What is granted for someone's favor is not to be turned to his detriment), and even with travelers who otherwise would be bound to approach their own superior, which often could not be done without great inconvenience (can. 1245; 2253, 3; 2237; 1043-1045), unless nevertheless the contrary is positively established, as for example in can. 990, § 1, and 1402, § 1; indeed with oneself, because they are not of a lower condition than subjects, and because acting in the name of the superior one dispenses himself as subject to him, though not in one's own laws, in which he does not need dispensation, since he is not directly subject to them.

386. For dispensation there is required a will of dispensing, present or antecedent; but a presumed future will is not sufficient, which is not an absolute will, for example: if the superior knew, he would dispense. And in this way dispensation is distinguished from license: for in this case the action is not prohibited simply, but only lest it be done without the consent of the superior, for which presumed consent suffices; but when the action is absolutely prohibited and therefore evil, there is necessary at present a will which takes away the prohibition and the malice. This can be manifested 1) expressly, by words, writings, signs; or 2) tacitly from facts: a) if the superior knows that action is being taken against the law and does not contradict, although he easily can and ought, so that from the circumstances his silence cannot be explained except on the supposition of dispensation; b) if with certain knowledge he commands or concedes what cannot be done without dispensation, for example, the Pontiff knowingly gives a benefice to an irregular person, or commands meats to be eaten on a forbidden day.

387. For dispensation there is required a just cause, known and examined by mature counsel. - For a) if the dispenser dispenses according to his own will, he will be either unfaithful or imprudent: unfaithful if he does not have a just cause, for he orders to a particular good a power given unto edification on account of the common good, and thus turns it into destruction, while he disturbs the right order of society and, by committing acceptance of persons, gives occasion for complaints, exempting one while others are pressed by the law; imprudent if he is ignorant of the reason for dispensing. Moreover b) because to exempt from law him who is not to be exempted from law is acceptance of persons; c) because it is disgraceful and against natural law that a part without cause should not be conformed to the whole. Hence:

1. If a just cause is lacking, a) and it is done in the law of a superior, the dispensation is illicit as an abuse of another's power, and indeed gravely or lightly according as the law obligates under grave or under light matter, and ordinarily invalid because the superior is not judged to commit the power of dispensing without cause, which he could not concede without sin (can. 84, § 1);

b) if it is done in one's own law, the dispensation is valid because positive law does not bind without the will of the superior, but it is illicit gravely or lightly according to the degree of disturbance that follows: although it is a sin of acceptance of persons, which is grave from its genus, against distributive and legal justice, and which is apt to generate scandal and harm the common good, nevertheless more often in a particular case it will in fact be light, because ordinarily it is not very harmful; yet it is grave if notable scandal arises, or harm to the one dispensed, or a burden upon others;

c) a subject knowingly asking for dispensation without legitimate cause sins gravely or lightly, according as he induces the dispenser to grave or light sin (even if the superior is in good faith); nevertheless, by using the dispensation, if it is valid and scandal is excluded, he does not sin.

2. If only knowledge of the cause is lacking: a) if it is done in the law of a superior, the dispensation is illicit, and also invalid if the delegating superior placed examination of the cause as a condition of dispensation, or also a just cause and the cause is lacking; otherwise validity is probable;

b) if it is done in one's own law, the dispensation is valid but illicit;

c) if, diligence having been applied, it is not certain but probable that the cause suffices, the dispensation is licitly and validly granted, because in morals evidence cannot always be had, but a prudent and probable reason suffices (can. 84, § 2).

In doubt concerning the validity of a dispensation it is judged valid: one must stand for the value of the act.

388. A just cause of dispensing can be: necessity, for example, grave pain of the head or weakness from fasting; piety, for example, the service of worship for dispensing from an irregularity; or utility at least mediately redounding to the common good, whether intrinsic or extrinsic.

Intrinsic utility is preservation, difficulty, or inconvenience of observing the law united to it per accidens, for example, preservation from scruples or temptations, the difficulty of a journey in winter. Extrinsic utility is the good of the one dispensing, for example, that he show himself liberal or kind; the good of the one dispensed, for example, utility in view of good merit, the dignity of the petitioner; the common good, for example, for forestalling excessive transgressions, for increasing common gladness. Thus also the payment of money for the utility of the Church, the compensation of merits, the reconciling of peace.

1. Nevertheless the use of every cause, if the one dispensing is not the legislator, is not always permitted. Namely, one must see in what way the faculty has been delegated and within what limits it is contained.

How great a cause is required must be determined with attention to the moment of the law, the quality of the person, the circumstances of time, etc., so that, all the circumstances being considered, it appears fitting to reason. It is, namely, like a cause with a double effect: the good coming from the dispensation must compensate the evil caused by it. But the cause need not be so great that it certainly excuses of itself from the observance of the law, or probably if the superior cannot be approached, because then there is no need of dispensation, since the law has probably ceased; nor can it be minimal or just any small cause, but an intermediate cause suffices.

The cause of dispensation need not exist when the dispensation is asked for or when it is granted inchoatively (for example, mandatorily), but when it is granted definitively and effectively, or is executed (can. 41). Moreover it must remain until use is begun and during use, if it was given for an act morally divisible and revocable and the cause by its nature is temporary; whence the dispensation is given under the tacit condition that the cause continue, for example, dispensation from recitation of the hours or fasting on account of infirmity. But it need not remain if it was given for an act morally indivisible and irrevocable, and the cause by its nature is perpetual and therefore, if it ceases, it is per accidens; whence the dispensation is given absolutely, for example, dispensation from an irregularity on account of poverty is valid even if the poverty has ceased; dispensation from an impediment of marriage for legitimating offspring is valid even if, after the dispensation has been granted, the offspring dies.

389. Dispensation can be vitiated by violence, fear, and error.

A. Violence strictly so called, or perfect and absolute, invalidates it because it renders it involuntary (can. 103, § 1).

B. Fear of itself does not invalidate, because it does not take away the will of dispensing, unless it was so grave that it altogether disturbed reason; whence a dispensation is judged valid unless something else is provided by law (can. 103, § 2), as for remission of a penalty extorted by fear (can. 2238).

C. Error arising either from subreption, that is, suppression of the truth, or from obreption, that is, expression of the false:

1. invalidates if it bears

a) upon the substance of the object or thing, or upon a quality which enters the substance of the thing about which dispensation is made, for example, affinity instead of consanguinity (can. 40);

b) upon the subject or person to whom it is given, for example, Peter instead of Paul (can. 40);

c) upon those things which, according to the style of the curia, are required to be expressed for validity, even if the superior would dispense otherwise (can. 42, § 1), unless nevertheless the clause motu proprio is added to the dispensation (can. 45);

d) upon the final or motive cause which so moves to dispensing that, once it is removed, the dispensation would not have been given, if the sole cause or all the final causes alleged are false (can. 42, § 2), unless nevertheless an exception is established by law, as for lesser impediments of marriage (can. 1054).

2. Outside these cases it is valid, for example, if the error bears upon accidents of the thing, or upon the name of the person or place or thing, provided, in the judgment of the Ordinary, there is no doubt about the person or thing itself (can. 47), or upon a merely impulsive cause without which the dispensation nevertheless would have been given but which moves one to dispense more easily, or if it bears extrinsically and independently toward the thing requested, even if otherwise it would not have been dispensed: for here and now the one dispensing wills to loose the bond.

3. A defect of obreption or subreption in only one part does not weaken another, if several dispensations are granted at the same time (can. 42, § 3).

390. Observations. - 1. Canon 84, § 2: "A dispensation, in doubt concerning the sufficiency of the cause, is licitly asked for and can be licitly and validly conferred."

2. Canon 85: "Not only a dispensation according to the norm of can. 50 (concerning a law in the advantage of private persons), but the faculty itself of dispensing granted for a certain case, is subject to strict interpretation"; but not a general faculty, whether ordinary or delegated for a universality of causes, since it is favorable and granted beside the law, and therefore admits a broad interpretation (can. 200, § 1).

3. Canon 86: "A dispensation which has successive duration (and not the whole effect at once, as an irregularity or the removal of an impediment of marriage) ceases in the same modes by which a privilege ceases, and also by certain and total cessation of the motive cause (whether negatively or contrarily)." Whence it also ceases: 1) by revocation of the granting superior signified to the subject (can. 71 and 60), which the legislator always validly effects, but an inferior delegate only for a just cause; 2) by renunciation made by him who can renounce, and accepted by the competent superior (can. 72); 3) by the resolution of the right (and death) of the one granting, if the dispensation was given at pleasure (can. 73) or with an equivalent clause: until I shall will, until it shall please, etc.; otherwise if it was given: until I shall revoke; 4) by the death of the person to whom it was granted, if the privilege was personal; if local, by the destruction of the place, unless it is restored within fifty years (can. 74-75); 5) when the time has elapsed or the number of cases for which it was granted has been completed (can. 77); 6) if the circumstances, in the judgment of the superior, are so changed that the dispensation has become harmful or its use illicit (can. 77); but not by non-use alone, unless it is onerous to others and legitimate prescription or tacit renunciation is also added (can. 76).

But a dispensation which has the whole effect at once, if it is granted absolutely, does not cease even by certain and total cessation of the motive cause.

4. Concerning the invalidity of dispensation the following have force:

Canon 43: "A favor denied by one Sacred Congregation or Office of the Roman Curia is invalidly granted by another Sacred Congregation or Office, or by the local Ordinary, even if he has power, without the assent of the Sacred Congregation or Office by which, or with which, action had begun, saving the right of the Sacred Penitentiary for the internal forum."

Canon 44, § 2: "A favor denied by a Vicar General and afterwards obtained from the Bishop, with no mention made of this denial, is invalid; but a favor denied by the Bishop cannot validly be obtained from the Vicar General, even with mention made of the denial, if the Bishop does not consent."

Canon 53: "The executor of a rescript invalidly performs his office before he has received the letters and recognized their authenticity and integrity, unless previous notice of them has been transmitted to him by authority of the one rescripting."

5. Concerning the cessation of the power of dispensing, one must speak according to the mind of canons 207 and 208.

6. To avoid simony, dispensation must be gratuitous, although modest payments can be exacted under the title of chancery expenses, as for example in can. 1056.

7. A real or territorial dispensation has force in the territory; a personal dispensation, as is that which removes an impediment or inability, everywhere; a mixed dispensation (real and personal) has force for all in the territory, and for subjects also outside the territory.