Article IV: On the Quality and Extension of the Obligation of Invalidating Law

352. An invalidating law is that which renders some act invalid or null. To it is reduced, as a species to a genus, an inhabilitating law, which decrees that some person is unfit for this or that act; whence invalidation directly regards the act, and inhabilitating directly regards the person; nevertheless in practice and morally speaking both return to the same thing, because the act is always rendered invalid either immediately or mediately.

Invalidating law differs: a) from prohibiting law, because this renders the prohibited act illicit, not invalid; whence there are distinguished a merely prohibiting law (e.g., an impeding impediment of marriage), a merely invalidating law which only invalidates the act and does not prohibit it (as can happen if a superior invalidates the vow of a religious), and a law at once prohibiting and invalidating (e.g., a diriment impediment of marriage);

b) from penal law strictly so called, because this establishes a penalty on account of fault; whence there are distinguished a penal invalidating law, which invalidates in penalty for a delict (e.g., formerly one ordained without a certain title, and still today a beneficed person omitting the office receives fruits invalidly), and a directive invalidating law, which invalidates on account of the common good (e.g., clandestine marriage) or on account of the protection of certain persons (e.g., religious profession before age sixteen, a promise extorted by fear, alienation of goods of the Church without the consent of the chapter): then invalidation is a penalty improperly so called;

c) from a permitting law, which does not acknowledge the act or allows it to be neglected by others, or from the simple absence of law by which an act is not protected in the external forum (invalidation improperly so called).

Moreover, just as penal law, so invalidating law has effects by the fact itself or by the sentence of a judge: for sometimes by the law itself or by right the act is most fully invalidated, as happens for impediments of marriage, and for simoniacal conferral of a benefice (can. 729); sometimes it is invalidated by law in such a way that for the full effect a declaratory sentence of a judge is required, e.g., an election made if more than a third part of the electors were not legitimately convoked (can. 162, § 3), a renunciation made from grave fear unjustly inflicted, from fraud or substantial error, or simoniacally (can. 185); cf. also can. 1679, 2238: in which case the force of the sentence is drawn back to the moment at which the act was done and it is null from the beginning (can. 1679-1682); sometimes it is not invalidated by law, but by a decretory or annulling sentence of a judge, because the law establishes that the act can be invalidated by competent authority, or rescinded, as acts proceeding from grave fear or fraud (can. 103, § 2; 104; 153; 162, § 2; 1317, § 2; 1684, § 1; 1689): then it is invalid from the moment of the sentence.

The sentence of the judge, and consequently annulment, can be impeded by licit means; indeed the act remains valid even if the sentence is impeded by illicit means. But if this is done by unjust means, there can arise an obligation of repairing damage.

353. Principles. I. An invalidating law obligates judges to hold the act as invalid or to invalidate it; others, not to omit the act, but to hold it as invalid or not to insist upon an invalid act.

II. A penal invalidating law enacted against fault does not obligate nor have effect if fault is lacking: for it is founded on a presumption of a particular fact; whence invincible ignorance excuses from it, because the penalty was established on account of fault and supposes it. Thus if a beneficed person, from inculpable forgetfulness, omits, e.g., vespers of the office and compline, he makes the fruits his own.

III. An invalidating law which is also directive always obligates and has effect even if fault is lacking or if the law is unknown: for it is founded on a presumption of common danger, and the cause of annulment subsists even in a case of ignorance, namely, the common good. Hence canon 16, § 1: "No ignorance of invalidating or inhabilitating laws excuses from them, unless something else is expressly said."

Per accidens, however, the obligation ceases:

a) on account of common necessity: thus the impediment of clandestinity ceases if the pastor or Ordinary or delegated priest who would assist at the marriage cannot be approached, and it is foreseen that this condition of affairs will last for a month (can. 1098);

b) also on account of private necessity in a more urgent case, if the Church is known (or can be presumed) to dispense, as happens for almost all impediments of ecclesiastical right, both when danger of death is urgent and if, with all things prepared for the nuptials, the marriage cannot be deferred without probable danger of grave evil (can. 1043-1045; 1098).

354. Observations.

1. Concerning invalidating laws, let canon 11 be noted: "Those laws only are to be held invalidating or inhabilitating by which it is expressly or equivalently established either that the act is null or that the person is inhabilis" (that is, by equivalent words, e.g., by prescribing the necessary form of an act or substantial conditions).

2. Hence invalidation is not per se presumed to be annexed to a prohibiting law, but is to be proved per se and certainly. Whence canon 15: "Laws, even invalidating and inhabilitating laws, do not urge in doubt of right" (founded and reasonable).

3. On the contrary, in order that an invalidating law also be prohibiting, an express declaration is required, unless the act is base in itself or illicit from elsewhere.