§ 3. On Putative, Doubtful, and Probable Jurisdiction

413. Putative jurisdiction is that which in reality is not present, but is thought to be present. The Church supplies jurisdiction if common error is present, but not merely private error.

An error is called common which affects almost all the inhabitants of some place; but if it reaches only a few among the many of the same place, it is called a private error. In order that someone be regarded as a confessor through common error, some fact is required, for example, the exercise of the office of confessor undertaken by commission, from which the faithful of the place commonly regard him as a confessor; it does not suffice that someone once hear confessions after the manner of others.³⁰⁵ Formerly, in addition to common error, a colored title, or at least a supposed title, was required; but now the Code of Canon Law, c. 209, establishes simply: "In common error ... the Church supplies jurisdiction for both the external and the internal forum." Therefore no title is now required, and common error alone suffices for the Church to supply putative jurisdiction. The reason for this law is that otherwise many of the faithful would suffer spiritual harm from an inculpable error, namely, all the absolutions received would be invalid. Therefore, even if jurisdiction was granted for a determinate time or for a determinate number of reserved cases, a confessor who through inadvertence absolves after this time has elapsed or this number has been exhausted absolves validly, as has already been stated. But if a confessor, well knowing that his jurisdiction has already expired, nevertheless hears confessions, he indeed absolves validly when common error on the part of the faithful exists; but he himself incurs suspension a divinis.³⁰⁶ He does not, however, incur this censure, nor does he act wrongly, if he hears confessions in order to avoid a grave inconvenience. Thus, for example, an assistant curate can validly and licitly hear confessions if, on a day of a great concourse of penitents, he suddenly remembers that his jurisdiction has expired and there is not time to seek its prolongation.

Corollaries. 1. The faithful are not to be obliged to repeat confessions made in good faith to a priest who, from common error, was reputed to be a confessor. It is otherwise if someone, knowing of the common error, nevertheless confessed.

2. It is certain that the Church does not supply jurisdiction if the error is private. For then the common good is not harmed. Thus nearly all authors.

³⁰⁵ Cf. Noldin-Schmitt, De sacr.¹⁷, n. 347, and, against him, Cappello, De poenit., n. 490.

³⁰⁶ Code of Canon Law, c. 2366.

414. Doubtful and probable jurisdiction. Doubtful jurisdiction can arise either from a doubt of law or from a doubt of fact. In the first case, probable jurisdiction is rather present; but in the latter event doubtful jurisdiction is present, which can occur especially: a) if it is doubted whether the superior gave jurisdiction; b) whether the time of jurisdiction has expired; c) whether such a sin or such a censure is reserved.

Formerly there existed grave controversies concerning the validity and use of doubtful or probable jurisdiction, which have now ceased, since the Code of Canon Law, c. 209, establishes: "In a positive and probable doubt, whether of law or of fact, the Church supplies jurisdiction for both the external and the internal forum." Therefore, in practice, absolution can be granted validly and licitly when doubtful or probable jurisdiction exists. Nevertheless, as is evident of itself, care must be taken that the doubt which has arisen concerning jurisdiction be resolved and give place to certain jurisdiction.