Article Second. On Dispensation from Law.

179. Notion. 1. Dispensation is defined as the relaxation of a law in a particular case made by legitimate authority. Therefore through dispensation, while the obligation of the law remains as regards the rest, by the will of the superior its obligation is removed as regards certain particular persons.

a. Dispensation is an act of jurisdiction which is exercised by an act of the will; wherefore a superior cannot grant a dispensation unless knowingly and willingly. But a dispensation extorted by fear is valid, provided the superior had the will of dispensing, because fear does not take away the voluntary, nor does positive law declare a dispensation of this kind invalid.

b. It differs from permission, by which the law is not relaxed but rather fulfilled: for permission has place when the law prohibits some matter not absolutely, but only under a condition, namely that it not be done without the consent of the superior. Thus if a law prohibits a religious from leaving the house without the superior's permission, he who asks permission does not ask for the relaxation of the law, but observes the law. It differs from a declaration, by which it is judged that some particular case is to be excepted from the law. A declaration can be made by any private person without any power; thus a physician can declare that someone is excused from fasting, if he rightly judges that fasting can harm him on account of weakness. It differs from a privilege, which of itself is perpetual and is not always against the law; dispensation, on the contrary, of itself is granted for a time and always is against the law.

c. The distinction between dispensation and permission is especially perceived in this, that presumed dispensation is never valid, but presumed permission is valid. Suarez assigns this reason for the matter. Where something is prohibited from being done without permission, the action is not simply prohibited, but only prohibited from being done without the consent of the superior, which consent can also be presumed from common usage. But where dispensation is required, the action itself is prohibited and therefore evil; wherefore through an act of the will of the superior himself the prohibition and malice must be removed.²

2. Dispensation of itself obtains its effect at the moment at which it is granted to the petitioner; nevertheless, in order that he may licitly use the dispensation, it must be notified to him either by letters or through an intermediary, lest, presuming that a dispensation has been made, he expose himself to the danger of breaking the law if perhaps it had not been granted.

¹ Stiegler, Dispensation, Dispensationswesen und Dispensationsrecht im Kirchenrecht (Mainz. Kirchheim. 1901).

² Cf. De legibus l. 6. c. 13. n. 20.

180. Division. Of the many divisions of dispensation, only one must be noted, since others, e.g. due and not due, valid and invalid, are understood from the terms themselves, namely that by which it is divided into obreptitious, if in the petition something false is asserted, and into subreptitious, if something is kept silent which had to be manifested. But often these words are used indiscriminately.

No necessity exists in a petition of alleging a dispensation previously denied by the same superior or by another superior, predecessor or inferior. Whether the petition is subreptitious if a dispensation denied by the supreme pontiff is not alleged in a petition directed to the bishop is indeed disputed; but it must be denied, unless the supreme pontiff expressly restricts the faculty of the bishop in some case: for of itself delegated power is not restricted from the fact that the superior, from whatever cause, was unwilling to give a dispensation.¹

¹ Cf. Lehmkuhl, Casus consc. I. n. 125.