§ 2. On the Cessation of the Obligation of Law by Dispensation

238. Notion of dispensation.³⁹ According to the primitive notion, dispensation (oikonomia) is an equitable distribution of a common thing to individuals according to each one's necessity.⁴⁰ But since it pertains to prudent administration sometimes from benignity to remit something otherwise owed, hence dispensation is wont to signify some remission of obligation. But dispensation of law can be defined: the relaxation of a law, or of its obligation alone, made in particular cases by competent authority from a special and sufficient cause.⁴¹ Therefore the effect of dispensation is to take away in particular cases either the law itself or at least its obligation. Dispensation properly so called is always an act of jurisdiction and not of domination nor of knowledge alone; and therefore one who lacks ecclesiastical jurisdiction, as for example a superioress, cannot properly grant an ecclesiastical dispensation. To declare the notion of dispensation more clearly, it is useful to compare it with similar acts. Therefore dispensation differs:

1. from epikeia, since it is not done by a legitimate superior, but by the subject himself judging that some act is not comprehended under the law;

2. from license, which has a much broader signification than dispensation. Anyone who freely disposes of that thing whose use is sought can concede license. Thus a master gives a servant license to make a journey; thus a father gives a son license to use some thing, etc. There is given a presumed license, but there is not given a presumed dispensation; unless, however, someone in an improper sense wished to call epikeia a presumed dispensation;

3. from declaration, by which a superior or some other learned man declares that in some determined case the law does not oblige. For suitable knowledge is required and suffices for a licit declaration; but for a licit dispensation jurisdiction is required besides;

4. from invalidation, by which a superior from dominative power either annuls or suspends some obligation of a subject; for example, a husband can indeed invalidate, but not dispense, the vows of his wife.

5. from privilege, which indeed of itself is perpetual and constitutes a true private law, while on the contrary dispensation (at least ordinarily) is temporary and lacks the character of law.

³⁹ Both in ancient and in modern times rather many things have been written concerning the notion of dispensation, but nevertheless not small ambiguities and confusions concerning this notion still exist. This indeed seems to come from the fact that dispensation is not always taken in the same sense in diverse matters, nor was it so taken in past times. Authors speak in one and the same tenor concerning dispensation in fasting, in matrimonial impediments, in ratified marriage, in irregularities, in vows, etc.; and nevertheless it is clearer than light that, for example, dispensation of ratified marriage is altogether something other than dispensation of fasting or abstinence. For by means of dispensation a ratified marriage is wholly destroyed and taken away, so that each spouse can freely enter into a new marriage; but by means of dispensation the law of fasting or abstinence is by no means taken away, but, while it remains, only its obligation in a particular case is suspended. Cf. Corradus Pyrrhus, Praxis dispensationum; Thomassinus, Vetus et nova disciplina P. II, l. 2, c. 72; Stiegler, Dispensationswesen, Dispensationsrecht, Mainz 1901.

⁴⁰ Cf. Gen. 43, 16-19; Luke 12, 42.

⁴¹ Cf. Cod. iur. can. c. 80.

239. Divisions. There are several divisions of dispensation, which nevertheless we do not all bring forward for the sake of brevity. For a fuller doctrine, the canonists can be consulted. Chiefly there are distinguished:

1. Valid and invalid dispensation, according as it really produces the intended effect, or not.

2. Licit or illicit dispensation, according as it is clothed with all conditions, even accidental ones, required by law, or according as some accidentally and not essentially required things are lacking to it.

3. Subreptitious and obreptitious dispensation, according as in the petition for dispensation something true which had to be manifested was concealed, or also something false was declared.⁴² But by some ancient authors subreptitious and obreptitious dispensation are taken promiscuously for every dispensation which has been obtained in a not sincere manner.⁴³

4. Express and tacit dispensation, according as it is expressed in clear words, or is deduced from some fact. Some authors call tacit dispensation implicit dispensation.

Since the present matter of dispensation often comes into use in ecclesiastical practice, we shall discuss it a little more fully, nevertheless omitting several things which pertain to matrimonial dispensations, concerning which discussion will be below in the treatise on marriage.

⁴² Cf. Cod. iur. can. c. 42.

⁴³ Cf. Ferraris, Prompta Bibl., word "Rescriptum" n. 29.

240. Author of dispensation. "Dispensation ... can be conceded by the maker of the law, by his successor or superior, and also by him to whom they have conceded the faculty of dispensing."⁴⁴ The legislator himself or his delegate can concede dispensations; for he who freely made the law can also in a particular case remit the obligation of the law, either by himself or through his delegate.⁴⁵ It is plain of itself that the successor or superior of the legislator has the same power. The legislator, or his successor or superior, is said to dispense by proper authority. But all others cannot dispense except by delegated authority; and this, if by law or legitimate custom it is attached to some office, is wont to be called quasi-ordinary authority, or power, or jurisdiction. Thus, for example, a pastor is said to dispense by quasi-ordinary authority in lighter ecclesiastical laws, as in abstinence to be observed on some determined day.

⁴⁴ Cod. iur. can. c. 80.

⁴⁵ Cf. St. Thomas, S. theol. I-II, q. 97, a. 4.

241. The Supreme Pontiff can dispense 1. in absolutely all ecclesiastical laws; 2. in divine law, in which divine right, as it were, arises from human will, such as vows, a promissory oath, a ratified marriage.

That the Supreme Pontiff can dispense in all ecclesiastical laws is certain; for "the Pope has the fullness of power in the Church, namely in such a way that whatever things have been instituted by the Church or by the prelates of the Church are dispensable by the Pope."⁴⁶ - In ancient times some thought that the Pope was not above an ecumenical Council; but this doctrine is false, and already Sixtus IV condemned the proposition of Peter de Osma: "The Pope cannot dispense in the statutes of the universal Church."⁴⁷

That the Pope cannot properly dispense in some divine law is asserted by many. Thus St. Thomas also⁴⁸ says: "But concerning those things which are of divine right or natural right, [the Pope] cannot dispense." - Nevertheless it is certain that the Pope dispenses and can dispense in a ratified marriage; it is likewise certain that a ratified marriage is a true sacrament and indissoluble by divine right. Therefore the Pope dispenses in divine law. Since these things are so, authors now speak in this way concerning the power of the Supreme Pontiff: The Pope cannot dispense in absolute divine law, for example, concerning the number, matter, and form of the sacraments; and St. Thomas must be understood concerning this absolute law if, with many old authors, he denies the faculty of dispensing in divine law. But the Pope can sometimes dispense in divine right which is founded upon some human fact, for example, upon matrimonial consent given, upon a vow emitted.⁴⁹

⁴⁶ St. Thomas, Quodlib. 4, a. 13.

⁴⁷ Denz. n. 731.

⁴⁸ Quodlib., l. c. Ferraris (Prompta Bibl., word "Dispensatio" n. 19) calls this opinion almost common, for which he cites several grave authors. Cf. also St. Alphonsus, Theol. mor. l. 1, n. 189.

⁴⁹ Cf. above n. 164.

242. Bishops and other local Ordinaries can dispense:

1. In all particular laws and statutes of their territory. For the bishop alone is the proper legislator of those laws, even if they were made in a diocesan synod. But a legislator can by proper authority dispense in his own law. Certainly if some diocesan law has been approved by the Supreme Pontiff, and indeed not in common form, but in specific form, now it cannot be dispensed by the bishop, because it has obtained the special sanction of the Pope. - But laws of a plenary or provincial Council are held as superior with respect to bishops, who therefore cannot dispense in them except in a particular case, or if this has been conceded to them expressly or tacitly.⁵⁰

2. Also in common laws of the Church which are wont to be dispensed by the Holy See, provided there is question a) of a particular case of urgent necessity in which previous recourse to the Holy See is difficult;⁵¹ or b) of cases frequently occurring in matters not so grave, as, for example, in the law of fasting and abstinence; or c) of a doubtful law, if it is a doubt of fact. But in a doubt of law the law now does not oblige.^51a

3. In all those common laws in which the faculty of dispensing is conceded to bishops by the law itself, for example, in irregularities and suspensions arising from an occult delict, except that which arises from voluntary homicide, and except others brought to the contentious forum.⁵²

Not only by ordinary, but also by proper authority, a bishop can dispense in the particular laws of his diocese; for then he dispenses in his own law. But in the common laws of the Church a bishop cannot dispense by proper authority, as is plain of itself; nevertheless he dispenses by quasi-ordinary power in the cases indicated under n. 2 and 3, because by written or customary law itself such a faculty of dispensing has been conceded to him. Discussion of those individual cases will return in their own places. - The Gallicans and Febronians taught that a bishop can simply dispense his diocesan subjects in every ecclesiastical law, but this is false, since it lacks solid foundation and is repugnant to the constant doctrine and practice of the Holy See.⁵³

By specially delegated authority bishops can sometimes exercise very ample faculties of dispensing. But how far those faculties extend must be seen from the particular pontifical rescripts.

⁵⁰ Cod. iur. can. c. 291, § 2.

⁵¹ Ibid. c. 81.

^51a Ibid. c. 15.

⁵² Cf. Council of Trent, sess. 24, c. 6 de reform. Cf. Cod. iur. can. cc. 990, 1043, 1045, 1245, 2237.

⁵³ Cf. epist. of Pius VI to the bishop of Trier, a. 1782.

243. Religious superiors in exempt clerical institutes, by ordinary authority, can dispense in the laws and statutes of their own institute. The approved statutes of each institute must be seen. As to common ecclesiastical laws, generally it can be said that those exempt religious superiors (even local ones), since with respect to their own subjects they have quasi-episcopal jurisdiction, possess for their subjects the same ordinary power (but not delegated power) of dispensing by which bishops enjoy for their diocesan subjects. But as to the observance of feast days, abstinence, and fasting, those superiors cannot dispense all subjects together, but only individual ones.⁵⁴

⁵⁴ Cod. iur. can. c. 1245, § 3.

244. Pastors by ordinary authority can grant no dispensation in ecclesiastical law.⁵⁵ Nevertheless, since they have quasi-ordinary jurisdiction, ecclesiastical law attributes to them the faculty of dispensing in individual lighter cases, for example, in fasting, in abstinence, in servile works prohibited on a feast day, individual faithful subject to them, indeed even individual families, but not the whole parish together.⁵⁶ The scope of this faculty is wont to be determined either from legitimate custom or from diocesan statutes. When danger of death is urgent, or in another urgent case, pastors also have an ample faculty of dispensing in matrimonial impediments, as will be said below III, n. 859-860.

⁵⁵ Ibid. c. 83.

⁵⁶ Ibid. c. 1245, § 1.

245. Confessors can dispense in more urgent occult cases in which the Ordinary cannot be approached and danger of grave damage or infamy is imminent: 1. concerning all irregularities arising from delict, except a) an irregularity which has arisen from voluntary homicide or from procuration of abortion; b) an irregularity brought to the judicial forum. But this dispensation is limited to the exercise of an order received and therefore does not extend to receiving orders;⁵⁷ 2. concerning the observance of a vindictive penalty,⁵⁸ with the burden, however, of having recourse within a month to the competent superior. But if this recourse is morally impossible, the confessor can dispense absolutely; 3. concerning all matrimonial impediments introduced by ecclesiastical law, with two excepted, namely those which arise from the order of sacred priesthood and from affinity in the direct line, if that affinity arose from a consummated marriage.⁵⁹ Indeed, when danger of death is urgent, the confessor can, for the internal forum in the act of sacramental confession, dispense even from public impediments and from the form to be observed in the celebration of marriage, as will be said more broadly below III, 859.

In more urgent cases confessors also have an ample faculty of absolving from censures, as will be said in the treatise on censures. But this is not dispensation, but absolution.

Religious confessors who have the privileges of the Mendicant orders, by delegated authority, can besides dispense: 1. In all vows, except a) solemn or even public vows, that is, all public vows emitted⁶⁰ in some order or in some approved religious congregation; b) vows principally emitted in favor of a third party; c) the following two vows: of perfect chastity, and of entering an approved religion with solemn vows. It must be noted, however, that dispensation of these two vows is then only reserved if they are vows altogether absolute, certain, perfect, and emitted after the completed eighteenth year of age.⁶¹ Therefore if they are conditioned, penal, or not so certain, they can be dispensed by regular confessors. Hence, for example, if a girl in illness vowed that she would enter the order of Poor Clares if she recovered health, she can from a reasonable cause be dispensed from this vow by a regular confessor, since that vow depends on the condition of health to be recovered.⁶² - 2. In a promissory oath, and indeed whether it is joined with a vow or not.⁶³ - Also in a simple vow of perfect chastity, when immediately before marriage one or other of the betrothed declares that vow in confession, and there is no time available for obtaining dispensation from the competent authority. Thus the opinion today is certain, since in such an urgent case every confessor can dispense from that impediment of marriage.

⁵⁷ Ibid. c. 990, § 2.

⁵⁸ Ibid. c. 2290.

⁵⁹ Ibid. c. 1045.

⁶⁰ If some religious has made private vows, for example, to recite the Rosary daily, he can be dispensed by a regular confessor.

⁶¹ Cod. iur. can. c. 1309.

⁶² Some authors, among whom especially is Concina (Theol. christ. l. 4 in Decal., diss. 3, c. 11, n. 16), deny that regular confessors can dispense in vows. They concede only that they can commute vows. Ger. Oesterle, O.S.B., refutes this opinion very well in a learned way in Theologie und Glaube 1911, 389 sqq. and shows the opposite opinion to be safe in practice. (Cf. St. Alphonsus, Theol. mor. l. 4, n. 257, and below in the treatise on vows II, 423.)

⁶³ Cf. Noldin, De praecept. n. 253.

246. Note 1. Whoever has ordinary (or quasi-ordinary) power of dispensing can subdelegate it to others, unless something else is expressly provided by law. - An ample faculty of dispensing is conceded to all confessors in the so-called "Little Page of the Sacred Penitentiary," which can be obtained rather easily.

Note 2. When a just cause of dispensation exists, the superior not only can, but also sometimes must, concede dispensation. For either law, or justice, or charity can demand this. Thus, for example, a bishop must dispense from interstices if there is a great scarcity of priests and otherwise the common good would be harmed (legal justice demands this). Likewise a bishop must dispense in vows if otherwise the one vowing would be situated in grave danger of salvation (charity demands this); he must dispense in matrimonial banns if otherwise great damage or scandal would arise (justice demands this).

247. The subject of dispensation is all those who are subject at least in some way to the jurisdiction of the one dispensing. For dispensation, as was said above, is an act of jurisdiction, which cannot be exercised except upon subjects (to whom the unsettled are reckoned).⁶⁴ Hence, for example, a bishop (or pastor) can dispense with his subjects even when they are staying outside his own territory for a time. For they remain in some way subjects and nothing prevents dispensation from being conceded to the absent.⁶⁵ - But it is said: those who in some way are subject to the jurisdiction of the one dispensing. For full subjection is not required; hence, for example, a superior in an exempt clerical religious institute can dispense in fasting and abstinence even all those who dwell day and night in his religious house, such as servants, students, etc. A special difficulty arises concerning dispensation to be granted to travelers, exempt religious, and the one dispensing himself. But according to all authors, for obtaining dispensations the unsettled must have recourse to the superior of the place in which they are here and now staying.

⁶⁴ Cod. iur. can. c. 94, § 2.

⁶⁵ Ibid. c. 207, § 3.

248. Travelers cannot be dispensed in common laws by the superior of the place where they are staying. For they are not properly subjects. Thus at least of itself. But in several cases travelers can receive dispensations of common law, just as inhabitants, as will be said in the proper places. Hence generally: In lesser cases, for example, in fasting, in observance of feasts, in abstinence, etc., the bishop, pastor, or even confessor (from delegation of the bishop) can from a reasonable cause dispense travelers.⁶⁶

⁶⁶ Cf. St. Alphonsus, l. c. l. 1, n. 158; Cod. iur. can. c. 1245.

249. Exempt religious, according to the present discipline of the Church, can almost be dispensed by the Ordinary of the place like others living in the territory.⁶⁷ The reason is that otherwise those religious would be in a worse condition than the common faithful; and their exemption would turn not to their advantage, but rather to their detriment. This indeed is against Rule 61 of Law in VI: "What is conceded for the grace of someone is not to be turned back to his loss."⁶⁸ It must be noted, however, that exempt religious cannot seek dispensations from the Ordinary of the place unless previous permission of their own superior has been had. For he who seeks dispensation places himself (at least for this case) under the jurisdiction of the one dispensing. Moreover an exempt religious is prohibited, without previous legitimate permission, from placing himself under the jurisdiction of the local Ordinary.

⁶⁷ Cod. iur. can. c. 620.

⁶⁸ Thus also teach Vermeersch, De relig. instit. I, n. 382; Noldin, De princ. n. 183; Lehmkuhl, Theol. mor. I, 261.

250. The one dispensing himself, unless he has a power of dispensing limited to a certain mode or to certain persons, can also dispense with himself. Thus the common opinion. The reason is that dispensation is an act of voluntary and gracious jurisdiction, which one can ordinarily exercise upon himself. Hence, for example, a superior who can dispense his subjects in fasting can also dispense himself. If, however, the faculty of dispensing has been conceded to be exercised in the tribunal of penance alone, then certainly the one dispensing cannot dispense with himself, because no one can be judge of himself in the tribunal of penance. - In practice it is to be counseled that, for the internal forum, anyone, even the legislator himself, seek dispensation from another confessor, according to that saying: "No one is judge in his own cause."⁶⁹

Note. Since jurisdiction can be exercised even upon one absent, ignorant, and unwilling, nothing prevents dispensation from being conceded to some subject who is absent, or ignorant, or even unwilling. And thus in reality dispensation is sometimes conceded in the so-called "sanation in the root."⁷⁰

⁶⁹ Cf. S. theol. II-II, q. 185, a. 8.

⁷⁰ Cf. below III, 887.

251. Conditions required for dispensation. From the law of the Council of Trent,⁷¹ which thereafter was not changed, three conditions are required for legitimate dispensation: 1. a sufficient cause; 2. knowledge of that cause; 3. gratuitous concession of the dispensation.

1. Sufficient cause of dispensation. Internal and external causes, motive or final causes, and impulsive causes are usually distinguished.

Internal causes arise from the difficulty of observing the law itself in a particular case; for example, difficulty of observing the law of fasting because of grave labors.

External causes arise not from the law itself, but from the common good, for which better provision is made if in this particular case dispensation of the law is conceded. Such external causes are the dignity of the petitioner or of the superior dispensing, the payment of money for the utility of the Church. Thus, for example, because of an external cause a dispensation from some matrimonial impediment is conceded to a prince, namely because in this way the prince is bound more to the Church or because he gives a great sum of money to the poor. Such dispensations are sometimes called given "without cause," that is, without an internal cause, but not without an external cause. These external causes also are just and sufficient for obtaining dispensation. For in making laws the legislator first of all intends the common good. But it can be more useful for the common good if, although an internal cause is lacking, dispensation is conceded because of the dignity of the petitioner, than if it is refused. Therefore then the legislator or his delegate licitly concedes dispensation.

Motive or final causes are called those which by themselves alone suffice for obtaining dispensation. They are also customarily called canonical, because canon law admits them as sufficient.⁷²

Impulsive causes are those which indeed alone do not suffice, but nevertheless help for obtaining dispensation. The distinction of motive and impulsive causes often comes into use in matrimonial dispensations.

⁷¹ "Let all know that the most sacred canons are to be observed by all, and, so far as can be done, indiscriminately. But if an urgent and just reason and sometimes greater utility should demand that dispensation be made with some persons, this, the cause being known, and with the greatest maturity and gratuitously, is to be performed by whomever the dispensation will pertain to; and a dispensation made otherwise is to be judged subreptitious" (sess. 25, c. 18 de reform.).

⁷² Cf. below in the treatise on marriage, the canonical causes for obtaining dispensations concerning impediments, III, 871.

252. Principle. A dispensation conceded without sufficient cause is a) illicit, if it was given by the legislator himself (or his successor or superior); but it is besides b) invalid, if it was given from delegated authority.⁷³

Therefore every dispensation conceded without sufficient cause is always illicit and sometimes also invalid. The reason for the first part is that dispensation is deservedly called a "wound of the law." But just as it is not licit to inflict a wound on a man without sufficient reason, so neither is it licit to inflict a wound on the law without a proportionate cause. - Besides, just as the legislator cannot make law at his own whim, so neither ought he relax an established law without sufficient reason through dispensation. But if he acted otherwise, he would disturb the right order of society, loosen the nerve of discipline, be an accepter of persons and an unfaithful dispenser; indeed he would be rather a dissipator than a dispenser. The gravity of the sin committed by such an unfaithful dispenser is to be weighed not so much from the gravity of the law frivolously dispensed as from the detriment thereafter following either for some members of the community or for the whole community.

The reason for the second part of the stated principle is the manifest excess which is committed by the one dispensing against the will of the superior, since he is not presumed to have conceded the faculty of dispensing unless sufficient reasons are present. Therefore the delegate has exceeded the limits of the faculty obtained and consequently has dispensed not only illicitly, but also invalidly.

Gravity of the cause. The cause required for dispensing licitly is not necessarily as great as one which already of itself excuses from observance of the law. That cause suffices which, all the circumstances of the law and of the person being considered, is known to be fitting to reason, so that from the dispensation conceded both the common good is not harmed and the good of the dispensed person is increased. But which causes in individual cases are really sufficient cannot be determined by a general rule. First of all, the good and evil effects which probably will follow from the dispensation conceded must be attended to. It is never licit to concede a dispensation which would tend to the prejudice of the common good. Indeed, through dispensation the common good ought to make progress.⁷⁴ Three legitimate causes for dispensing are usually enumerated, namely: necessity, charity, utility (common or private). - If there is doubt, not indeed whether a cause exists, but whether the cause brought forward is sufficient, and that doubt persists after diligent deliberation, nevertheless the dispensation can validly and licitly be sought and conceded;⁷⁵ because otherwise many anxieties would arise, and besides, because the legislator in these circumstances is rightly presumed to concede license of dispensing. When the subject has candidly and truthfully explained to the superior all his causes for dispensing, and then has obtained the requested dispensation, now he can with safe conscience use the dispensation so obtained, unless, however, it is manifestly established that the superior dispensed frivolously without sufficient reason.

Note. Not only he who dispenses without sufficient cause commits sin, but also he who knowingly uses such a dispensation.

⁷³ Cod. iur. can. c. 84, § 1.

⁷⁴ S. theol. I-II, q. 97, a. 4 ad 1.

⁷⁵ Cod. iur. can. c. 84, § 2.

253. 2. Knowledge of the cause of dispensation. Not only must a sufficient cause really be present, but it must also be known by the one dispensing, since otherwise he would act irrationally. In the external forum, especially if there is question of dispensation from a public impediment of marriage, the mode of having this knowledge is wont to be determined accurately and is called "verification of petitions"; but in the internal forum it suffices that the one dispensing have in whatever way moral certitude concerning the existence of a sufficient cause for dispensing. Authors dispute whether this knowledge of the cause is prescribed for the validity or only for the liceity of the dispensation to be imparted. St. Alphonsus⁷⁶ calls the opinion more probable which teaches that the value of the dispensation depends not on knowledge, but on the existence of a sufficient cause. This opinion indeed is safe in practice, unless, however, from the very words of the faculty of dispensing conceded, it clearly appears that knowledge of the cause is required as a condition sine qua non.⁷⁷

⁷⁶ Theol. mor. l. 1, n. 181.

⁷⁷ Cf. below in the treatise on marriage, III, 881.

254. 3. Gratuitousness of dispensation. It would be pure and foul simony if for the dispensation itself in ecclesiastical laws something material were demanded as a price. Nevertheless it is licit to demand some remuneration for the expenses of the Chancery; for it is very fitting that he who seeks dispensation pay the expenses necessary for the writer and dispatch of the dispensation. Besides this sum of money, which is wont to be called the tax (to which there is also added the "agency"), sometimes the so-called "composition" is imposed, which is money to be paid for pious uses or as a fine because of the wound which through dispensation is inflicted upon the law.⁷⁸ Ordinaries or their Officials who, on the occasion of a dispensation conceded, demand any emolument are held to restitution.⁷⁹

⁷⁸ Cf. below concerning matrimonial dispensations III, 876.

⁷⁹ Cod. iur. can. c. 1056.

255. Defects of dispensation. There are indeed many things⁸⁰ which can vitiate an acquired dispensation, both on the part of the one dispensing and on the part of the one dispensed, but concerning several of them discussion has already been had above. It remains to speak of two defects, namely 1. concerning error and 2. concerning fear.

⁸⁰ All defects of dispensation can be reduced to three species, namely to defect of jurisdiction, of justice (if a just cause for dispensing is lacking), and of will (if error or fear is present in the one dispensing).

256. 1. Error or deception arises in the one dispensing either from the fact that something false is narrated to him, or from the fact that something true which had to be manifested is kept silent in the petition of dispensation. Error can concern the object, subject, motive, and mode of dispensation. A dispensation obtained through the narration of some false motive is called obreptitious; but if it has been obtained through silence about some true thing necessarily to be manifested, it is called subreptitious.⁸¹ A dispensation, whether obreptitious or subreptitious, is generally invalid and void.⁸² The reason is that, generally speaking, the legislator or his delegate is not presumed to will to dispense with deception or error. Hence, for example, if a dispensation has been conceded concerning the diriment impediment of consanguinity in the second degree because it was asserted that conceived offspring had to be legitimated, this dispensation is invalid and void if the assertion was false. Some species of subreption also seems to be present if someone seeks from one superior of almost the same authority a certain grace denied by another superior. Hence the Code of Canon Law cc. 43 and 44 establishes: "A grace denied by one Sacred Congregation or Office of the Roman Curia is invalidly conceded by another Sacred Congregation or Office, or by the local Ordinary, even one having power, without the assent of the Sacred Congregation or Office with which, or with whom, dealing was begun, with the right of the Sacred Penitentiary for the internal forum remaining safe. Let no one seek from another Ordinary a grace denied by his own Ordinary, no mention having been made of the denial. - A grace denied by the Vicar General and afterward obtained from the bishop, no mention having been made of this denial, is invalid; but a grace denied by the bishop cannot validly be obtained from the Vicar General, even when mention has been made of the denial, without the bishop consenting."

But in the following cases a dispensation remains valid, even if obreption or subreption has been used:

a) If the dispensation was conceded motu proprio, at least if one final cause was true.⁸³ For the things which are conceded motu proprio are not conceded on account of petitions presented, as is apparent from the words themselves. Therefore it makes no difference what motive of dispensation is contained in the petitions presented. - Indeed, even if the sole final cause is lacking, dispensations concerning lesser diriment impediments of marriage are valid according to the discipline now in force, namely concerning the impediment 1. of consanguinity in the third degree of the collateral line; 2. of affinity in the second degree of the collateral line; 3. of public propriety in the second degree; 4. of spiritual relationship; 5. of crime from adultery with promise or attempted celebration of marriage.⁸⁴

b) If the error concerns merely accidental circumstances of object and subject, or only impulsive causes, provided, however, that a true sufficient cause for dispensing exists and at least the substance of the subject and object has been rightly designated. For the Code of Canon Law c. 42, § 2 establishes: "Nor does the exposition of what is false, or obreption, stand in the way, provided either the sole cause proposed or, from several proposed, at least one motive cause is true"; and c. 47: "Rescripts are not made void because of error in the name of the person to whom or by whom they are conceded, or of the place in which he resides, or of the thing concerning which there is question, provided that, in the judgment of the Ordinary, there is no doubt concerning the person or thing itself." Therefore the old adage, "A lying petitioner ought wholly to lack what has been obtained," is restricted to the case in which the lie has been made in an essential part of the sole final cause.

⁸¹ Cf. above n. 239.

⁸² Cf. c. 7, X, 2, 22; c. 2 in VI, 1, 11.

⁸³ Cf. Cod. iur. can. c. 45.

⁸⁴ Ibid. cc. 1042 and 1054.

257. 2. Light fear does not harm the validity of a dispensation obtained. Thus all. Whether grave fear unjustly inflicted for obtaining a dispensation invalidates this dispensation is disputed. Some affirm. For it is repugnant to natural right itself that someone be freed from the obligation of law because of unjust force inflicted upon a legitimate superior. Others rightly deny. For the general rule is: "Acts placed from grave and unjustly inflicted fear are valid, unless something else is provided by law."⁸⁵ But in law nothing is provided concerning a dispensation extorted by fear (unless there is question of a dispensation remitting a penalty, c. 2238).

⁸⁵ Cod. iur. can. c. 103, § 2; cf. Concina, Theol. christ. de iure nat. et gent. diss. 6, c. 5, § 7, n. 5; St. Alphonsus, Theol. mor. l. 1, n. 184.

258. Cessation of dispensation. Concerning this matter the Code of Canon Law c. 86 establishes: "A dispensation which has successive duration ceases in the same ways as a privilege, and also by the certain and total cessation of the motive cause." How privileges cease will be said below, n. 268. A dispensation which does not have successive duration, namely one which is completed by a single act, cannot cease once it has produced its effect, according to that adage: a fact cannot be made not done. Other dispensations can cease in three ways: 1. on the part of the one dispensing; 2. on the part of the one dispensed; 3. on the part of the final cause.

259. 1. On the part of the one dispensing, dispensation ceases a) by revocation; b) sometimes also by his death.

a) As to revocation, these things must be noted: He who has dispensed by proper authority can always validly revoke the dispensation conceded, provided every obligation has not been extinguished by the prior dispensation. For he who by proper authority freely suspends some obligation can also impose it again. Thus, for example, the Pope can revoke a dispensation given concerning the law of fasting. If, however, the matter dispensed has already lost every obligation, revocation can no longer be made. Thus, for example, the Pope cannot revoke a dispensation conceded concerning a ratified marriage, since what has once been dissolved and destroyed cannot revive. - He who conceded a dispensation from delegated authority cannot revoke it without a sufficient reason; for just as he could not validly or licitly concede a dispensation without a sufficient reason, so neither can he validly or licitly revoke it once conceded without a sufficient reason. But the reason is that the power of one dispensing from delegation is bound to only licit use. But someone uses his power illicitly if he does not act from a sufficient and reasonable cause. Therefore neither can the legislator himself, or anyone who has dispensed from proper authority, licitly revoke without sufficient reason a dispensation conceded.

b) By the death of the one dispensing or cessation in office, a dispensation generally does not cease; but it ceases if it was conceded by the following or similar formulas referring to the very person of the one conceding: "at our good pleasure,"⁸⁶ "at our judgment," "until it shall have pleased"; on the contrary it does not cease if it is conceded by the following or a similar formula: "until revocation," because revocation has not in reality been made.

⁸⁶ Cod. iur. can. cc. 86 and 73.

260. 2. On the part of the one dispensed, dispensation ceases by renunciation. But for this, so that the dispensed person can validly and licitly renounce the accepted dispensation, it is required: a) that from this renunciation the right of the community or of a third person not be harmed; b) that the superior have accepted the renunciation of the dispensed person. - That the dispensed person can freely renounce the dispensation obtained is easily understood. For dispensation is some benefit, which ordinarily is not imposed upon one unwilling. If, however, the dispensation or faculty conceded was conceded not only for the utility of the recipient, but also and perhaps principally for the utility of the community or of a third person, the dispensed person now cannot freely renounce the accepted dispensation, because then he would cause detriment to others. Thus, for example, a bridegroom cannot renounce a dispensation concerning an impediment of marriage if detriment would be caused to the bride from it. - But that acceptance of the superior is required for the valid renunciation of the dispensed person is clear from this, that through dispensation the obligation of the law has been extinguished. Moreover a new obligation cannot arise unless the superior consents. This consent indeed may be explicit or at least tacit or presumed. In matters of lighter moment tacit or presumed consent always suffices. Hence he who has been dispensed from the law of fasting can freely renounce the dispensation obtained from the presumed license of the one dispensing, if he can prudently fulfill the law of fasting.

By simple non-use a dispensation does not cease,⁸⁷ because non-use can consist with the intention of using the dispensation afterward. Hence if someone has been dispensed from the law of abstinence, but nevertheless for several months has abstained from eating meats, he can afterward, the sufficient cause still subsisting, again use the dispensation. Likewise, if someone, having obtained a dispensation for contracting marriage with Tullia, a blood relative in the third degree, nevertheless married Caia, he can, Caia being dead, marry Tullia. But if the dispensation is burdensome to a third person, then through voluntary non-use prescription can prevail, which finally at some point will destroy the dispensation.

⁸⁷ Cod. iur. can. cc. 86 and 76.

261. 3. On the part of the final cause, that dispensation ceases which was not conceded absolutely. Otherwise the dispensation remains valid. Therefore two things are required for the cessation of a dispensation: 1) That the truly final cause cease. For from the cessation of an impulsive cause the dispensation does not cease, provided some final cause remains. 2) That the dispensation was not given absolutely. A dispensation whose effect is indivisible and is at once obtained totally is judged to have been given absolutely. Certainly in practice it is not rarely very difficult to discern whether some dispensation was given absolutely, or only conditionally, namely under the condition of the cause subsisting. Hence very often doubts are wont to arise concerning the value of a dispensation, because the final cause now does not exist or has been essentially changed. To eliminate these doubts at least partially, Pius X established that in matrimonial impediments of lesser degree a dispensation always be conceded from motu proprio, and therefore in these dispensations the cessation of the final cause now does not harm the value of the dispensation obtained.⁸⁸ - But in other dispensations which have "successive duration," as it is said, when the final cause ceases, by that very fact the dispensation also ceases. Thus, for example, he who because of illness had been dispensed from the law of abstinence must, health having been recovered, again observe the law of abstinence; he who at the beginning of Lent had been dispensed from the law of fasting because of grave labors to be carried out is bound to fast if during Lent those labors have ceased. Modern authors rather commonly teach⁸⁹ that dispensations concerning impediments of marriage and concerning irregularities are conceded in an absolute mode, and therefore the dispensation remains valid if before the use of the dispensation the final cause has ceased, provided it really existed at the time of the concession itself. For example, Bertha obtained a dispensation concerning the impediment of consanguinity in order to legitimate offspring already received. At the time at which the dispensation was conceded, the offspring was living, but died before the marriage was to be contracted. Nevertheless the dispensation conceded is valid.⁹⁰ - Concerning dispensation from a vow of chastity there were special difficulties and controversies, but today this dispensation is conceded with clauses added so clear that in practice no grave difficulty any longer subsists. But it seems that in vows a dispensation ceases if before its execution the sole cause of dispensing has ceased. For no one (not even the Pope) can dispense in vows without a sufficient and really existing cause, since they are of divine right. Wherefore, for example, if Bertha bound by a vow of chastity had been dispensed for entering marriage solely for the sake of legitimating offspring, and this offspring died before celebration of the marriage, the dispensation of the vow ceases, so that Bertha remains bound by the vow and needs a new dispensation.

Territorial dispensation ceases if someone has gone out of that territory; on the contrary, personal dispensation follows the dispensed person wherever he may be. Hence, for example, a German cannot outside Germany use dispensations in the law of abstinence conceded for his fatherland; but if he received a personal dispensation in the law of abstinence, he can use it everywhere on earth. The matter is plain from what was said above n. 196 sqq. concerning the obligation of travelers.

⁸⁸ Cf. above n. 256.

⁸⁹ Thus Lehmkuhl, Theol. mor. I, n. 268; Noldin, De princ. n. 189; cf. also St. Alphonsus, Theol. mor. l. 1, n. 196.

⁹⁰ Cf. below in the treatise on marriage III, 880 and 883.

262. Interpretation of dispensation. 1. The faculty itself of dispensing, if it is ordinary or delegated for a universality of affairs, is to be interpreted broadly; any other strictly. Thus the Code of Canon Law c. 200, § 1. Therefore, for example, a confessor to whom a general faculty of dispensing for the internal forum has been committed can use it not only in the forum of penance, but also outside the confessional, because the internal forum is not restricted to the tribunal of penance. - Although the faculty of dispensing conceded for a certain case is to be interpreted strictly,⁹² nevertheless it also carries with it other powers which are necessary for its use; wherefore, for example, in the faculty of dispensing there is also included the power of absolving from ecclesiastical penalties, if any perhaps stand in the way, but only for the effect of obtaining the dispensation.⁹³

2. The dispensation itself is to be interpreted strictly, because it is judged to be a wound of the law.⁹⁴ Nevertheless sometimes a dispensation is to be interpreted broadly, especially in four cases: a) if it was conceded motu proprio; b) if it was conceded for the public good; c) if it was conceded to the whole community and not to a singular person; d) if it was inserted in the Code of Canon Law.⁹⁵

⁹² Cod. iur. can. c. 85.

⁹³ Ibid. c. 66, § 3.

⁹⁴ Ibid. c. 85.

⁹⁵ Cf. Lehmkuhl, l. c., n. 266.