§ 4. On Granted Dispensation

— By dispensation itself the obligation of the subject is taken away.

I. Notion. Dispensation, however, is "the relaxation of law in a special case" (c. 80). Therefore it differs:

a) From excuse, which indeed takes away obligation from the mind of the Superior in making the law, but without the intervention of the Superior: wherefore any expert and prudent man can declare someone to be immune from a law. Dispensation, on the contrary, means a certain retraction or attenuation of the will first had. (Lehmkuhl, I, 254; Wernz, I, 119);

b) From invalidation of obligation, which generally arises from dominative power, and touches the law only mediately. Thus vows of children not emancipated are invalidated by the father;

c) From privilege, which positively constitutes a certain right, while dispensation operates merely negatively;

d) From license, which is a faculty made according to law; a condition, on which being posited, the act is permitted by the law itself. Therefore it is not, as dispensation is, against the law, or a wound of the law ¹. And the necessity of license is understood to have been imposed in such a way that, unless formal and express license is required, license can be presumed. That is, it is judged enough that you act dependently on the Superior: which dependence is preserved if, according to a prudent estimation of mind, the Superior would grant the matter, and it is not repugnant that, with attention to the circumstances, the petition of license be omitted. Wherefore, if dispensation cannot be presumed, because presumption does not supply a causal effect, license can of itself be presumed, since it supposes no causal effect. Dispensation requires jurisdiction; license can flow from any legitimate power.

¹ Thus, from c. 1398 itself, the faculty as to prohibited books is not a dispensation, but a license, since the prohibitions are not absolute, but are against reading, etc., "without due license."

— II. The author of dispensation. By the will of him from whose will the law obliges, the bond of law can be taken away by dispensation. Wherefore the author of the law, or one who has superior or equal power, can always loose anyone from the obligation of the law by dispensation.

Anyone, I say, except himself, since by a superior law he must observe his own law. But when a just cause accedes, he himself is exempted where another is dispensed, because the reason of the common good, on account of which the legislator must observe his law, does not require that he be bound more firmly than the subjects; indeed rather it requires that the same just causes of excuse be able to hold. (There is no question concerning God, who is not formally bound by his law.)

An inferior to the legislator cannot dispense except by derived power, and because of a just cause: for a faculty given for dispensing is not judged to have been conceded for dissipating. Power, however, is communicated by delegation, which can be universal and on account of the dispenser himself, or particular and on account of the one dispensed. This delegation again can be conceded as subdelegable or not. The greatest delegation occurs when power is communicated as ordinary. Hence they distinguish power made for dispensing by ordinary right or by delegated right.

— III. The required cause. A just cause, which is always required for liceity, and, for a Superior who is inferior to the Legislator, for validity itself, ought not to be so great that of itself it exempts from the law, nor can it be too slight: this must be prudently estimated for individual precepts.

A legislator who dispenses in his own law without cause, scandal or other grave evils being excluded, is thought to sin only venially, as also he who knowingly seeks from him a dispensation without cause. The very use of such a dispensation, which is valid, does not seem of itself to be illicit.

On the contrary, both the concession and the petition and the use knowingly made of an invalid dispensation are grave sins where there is question of a grave precept.

Furthermore the causes of dispensing can be interior or exterior to the observance of the law. Interior to the observance are difficulty, the inconvenience of the observance of the law, an impediment which in this case or in this person the observance of the law brings to a better good: for these causes dispensations from the observance of Sacred Time (fasting, hearing Mass) are generally granted. Exterior causes are drawn either from the person dispensing, when it is expedient that he show himself liberal and benign; or from the person to be dispensed, to whom the dispensation will either be useful or seems to be granted for good merit; or from the common good: for example, to prevent too many transgressions, to increase common joy. For more, cf. Suarez, Leg. l. 6, c. 18, n. 15-18; 23-26.

Yet the use of every cause, if the one dispensing is not the legislator, is not always permitted. For it must be seen in what way the faculty has been delegated, within what limits it is contained.

Such a cause can exist as obliges the Superior to dispense. Nevertheless, a dispensation unduly denied does not of itself excuse the subject from observing the law.

To amputate anxieties in this matter, it will be helpful to note these things: a) The legislator is judged to permit that even a delegate dispense in doubt concerning the sufficiency of the cause (not likewise in doubt concerning the existence of the cause), lest more frequent doubts open the way to scruples and difficulties. Hence c. 84 § 2: "A dispensation, in doubt concerning the sufficiency of the cause, is licitly sought, and can licitly and validly be granted." b) A subject who alleges his reasons to the Superior and in good faith seeks a dispensation, once the dispensation has been obtained, can be secure. c) In doubt, one can answer for the validity of a dispensation that has been made.

But what if afterwards it has become known that the cause was lacking? We suppose that it is not the case where, either from the object of the dispensation or from the form by which dispensation was given, the competent Superior established that the dispensation would be efficacious in every case.

Therefore, if there has been no cause, the dispensation falls, and from that moment the futile attempt to use the dispensation will become formally illicit. If there has been some cause but an insufficient one, a dispensation which has a successive course, that is, which permits several distinct applications, falls for the future; but one which had to be efficacious once for all, for example to make a marriage valid, does not necessarily fall, but it must be prudently estimated what the author of the dispensation, by his own or delegated authority, could and wished to do.

What happens when the cause ceases, cf. here below.

— IV. The subject of dispensation. Since it requires jurisdiction, dispensation of itself can be granted only to subjects. Yet it happens that law extends the use of dispensation to non-subjects for their greater facility, or lest they be or become of worse condition than the subjects themselves.

Can a Superior or one having faculty dispense himself? He certainly can do this indirectly; insofar as he has comprehended himself in the general faculty made, by which, for example, he looses the whole diocese from some obligation. Endowed with the power of delegating, he can also make faculty for a delegate, for example a confessor, to dispense with himself. A subordinate dispenser can also do this directly according to the mode in which faculty has been conceded to him. For an act of voluntary jurisdiction does not seem to require distinction of persons. Thus a faculty made for a confessor is sometimes restricted to penitents, while a faculty given to a Superior generally does not prohibit this use for him. A legislator, as we have said, in his own law, just as he does not bind himself, so he does not properly dispense with himself; but where there is cause for dispensing, he can have himself as dispensed. We prefer this explanation. There are, however, those who concede to the legislator a direct faculty of dispensing with himself. Cf. Wernz, I, n. 123.

Dispensation, of itself, can be sought and obtained for another. Nor do acceptance of the dispensation or formal intimation to the one dispensed seem of themselves to be required. But attention must be given to the statutes of positive law, especially where the dispensation is at the same time onerous, for example brings about a change of religious state ¹. That conscious use of a dispensation is inaccessible to one ignorant of it is self-evident.

¹ Wherefore, although petitions directed to Sacred Congregations do not of themselves have to be autograph, when there is question of dispensation from the obligations of sacred order, the Sacred Congregation of the Sacraments is accustomed to require the writing and signature of the petitioner.

— V. The force of a dispensation that has been made must be gathered from the power of the one dispensing, from the tenor of the dispensation, and from the definitions of positive law. Cf. more where there is question of ecclesiastical law.

A distinction is made between a dispensation which removes an impediment, an incapacity; and this of itself is beneficial everywhere; and a dispensation which takes away the obligation of a law. This can be only real, which benefits all within the territory, but no one outside the territory; personal, which, being proper to the person, benefits him everywhere; real and personal, which benefits all within the territory, but subjects also outside the territory.

— VI. Interpretation of dispensation. A general faculty of dispensing is judged a grace conceded to the one dispensing: wherefore it is to be interpreted broadly.

On the contrary, the dispensation itself, since it is a wound of the law, of itself requires strict interpretation, especially where the right of a third party is injured. Yet they say broad interpretation is required if the dispensation has been conceded motu proprio, or for the common good, or to the community itself, or if it is contained in the body of law ¹, that is, now in the Code or universal law: for then it has been given for the common good. On the contrary, a faculty of dispensing with some particular person or for a certain case is morally nothing but concession of the dispensation itself: wherefore it requires strict interpretation. Cf. c. 85, Wernz, I, 125.

¹ St. Alphonsus, I, 104.

— VII. Cessation of dispensation. A dispensation ceases:

1. By revocation, which, in revocable matter, the legislator always validly effects; but an inferior only because of a just cause, and insofar as he is judged to have this power from the Superior expressly or tacitly. Moreover he has this who possesses a general faculty of dispensing, but not a delegate for a particular dispensation. For when the dispensation has been made, the latter, contrary to the former, has exhausted all power. Cf. Wernz, 1, 126.

2. By renunciation of him who accepted the dispensation, provided it has been accepted by the Superior: for without his assent the obligation cannot revive. The competent Superior is to be judged from the dispensation made and the faculties conceded. Thus a confessor dispensing in fasting can retract the very will of dispensing for the future, and therefore can accept the renunciation; but a delegate for a particular dispensation of marriage will not be able to do this.

3. Sometimes by the death of the one dispensing, according to the clauses employed and positive sanctions.

4. Sometimes when the end or cause ceases. Concerning this matter these things come to be noted. If the motive cause has not entirely ceased, the dispensation does not cease. If the cause has been reduced to an irrevocable act, for example if marriage has been contracted, if a benefice has been possessed, the effect of the dispensation, when the cause ceases, is not taken away. But if the dispensation made has not yet been used or can easily be revoked, the mind of the dispenser must prudently be investigated, who could have conceded the dispensation absolutely or dependently on the perseverance of the cause. But they reasonably explain the mind of the one granting thus, that what is conceded at once and all together, and has as it were an indivisible effect, is judged to have been conceded absolutely, as when an irregularity or impediment of marriage is removed. For a law which has been taken away by dispensation cannot revive without a new will of the legislator. Hence a matrimonial dispensation conceded because of poverty, because of offspring to be legitimated, etc., remains efficacious although before the marriage poverty has ceased, the offspring has died ¹. If, on the contrary, the matter has a successive course, for example a dispensation from fasting, from the breviary, from hearing Mass, this reasonably could not have been conceded except as virtually multiple for individual cases of obligation, and subject to the condition of the persevering cause.

¹ But if at the same time an obligation toward God undertaken, for example, by vow of chastity, had to be taken away, the matter is less certain. Cf. Lehmkuhl, I, 269; Noldin, Princ. n. 189. We shall examine the matter in its own place.

— I. Directly, law ceases when a new law expressly revokes the former or is contrary to it, or entirely orders the matter anew; or also when its end ceases contrarily, or it has commonly become useless. But uselessness in a particular case will rarely be able to be alleged.

II. The bond of law is dissolved:

1. When subjection has been removed, a) because of a changed condition of the person or because of changed territory; b) because of privilege.

Privilege means a particular and non-necessary right conceded by a beneficent will to persons, whether physical or moral.

Divisions of privilege. From object, privilege beyond the law grants a faculty which is prohibited by no law; privilege contrary to law withdraws from the command of law a person or act which is subject to it: it is conceded only to subjects and of itself is of strict interpretation. Privilege according to law is had only formally, insofar as what the law concedes is given by a title distinct from law. From its motive it is gracious, remunerative, onerous. From its origin, it is obtained by direct concession, whether motu proprio or at the instance of a party: what is conceded motu proprio is to be understood more broadly. Direct concession is made by law (a privilege contained in the Code) or by indult. It is also obtained by communication, by legitimate custom, and by prescription. A privilege introduced by law or custom also follows the norms of law and custom. By prescription a subjective right is rather obtained than a norm of right constituted. Communication extends to other persons a privilege conceded to certain ones; and this either by a particular act or by a general disposition. Communication can be in principal form and in accessory form: in the former case, but not in the latter, the privilege subsists independently of the prior concession. A real privilege is annexed to a thing, place, office; a personal privilege adheres immediately to the person: among personal privileges are numbered privileges conceded to a pious cause, a religion, etc. Privilege, generally favorable, also becomes odious insofar as it is onerous to another or, for the advantage of private persons, is opposed to common right.

The interpretation of privilege requires that the tenor of the words be observed; and that the privilege always effect something. Interpretation is sometimes to be made strictly, sometimes and of itself broadly.

The use of a privilege of itself is free; by accident it becomes necessary, whether to subject persons or even to a community.

Privileges cease when the day arrives, when the person or thing to which they adhere has been extinguished, by revocation, by liberative prescription of him who bears the burden; by renunciation, which is not always licit or valid.

2. The bond is also dissolved through impediments of execution.

a) Invincible ignorance, already of itself; vincible ignorance, sometimes from the will of the legislator, excuses from obligation.

b) Impotence excuses, whether it is strictly such, or also an excessive inconvenience, accidental and not accepted in an office. From the necessity of the common good or of a connected negative precept of natural law, law obliges even with danger to life.

c) Fear always diminishes malice; indeed it can create an excusing inconvenience.

To the question whether or not it is lawful voluntarily to place a cause of impediments, one must answer with distinction, by attending to the rigor of the precept, the extension of the impediment, its utility, its distance from the precept, the relation between the impediment and the matter commanded, and thence prudently gathering the will of the legislator. The cause can be so good, for example charity toward the sick, that it is right to seek with direct intention an excuse from the precept.

3. Through dispensation, or relaxation of law in a special case. This differs from excuse, from invalidation, and also from license, which is a faculty made according to law, so that it is not a wound of the law, and which can also be presumed.

The author of the law, or his equal or Superior, dispenses others by his own right, yet not directly himself, since he is held by a superior law; but he himself is exempted where others would be dispensed. Yet he can comprehend himself in a general dispensation; indeed he can delegate power for dispensing with himself. Others dispense by delegated power, whether universal or particular. The greatest delegation occurs when power is communicated as ordinary.

A just cause, always required for liceity, is required for validity if the one dispensing is not the legislator. Causes can be interior to observance, such as excessive difficulty, inconvenience; or exterior to the same, which are drawn either from the person of the one dispensing, or from the person dispensed, or from the common good. Dispensation is licit in doubt concerning the sufficiency of the cause; just as in doubt one must answer for the validity of the dispensation, so that a subject sincerely and in good faith seeking can be secure. If it has appeared that there was no cause, the use of the dispensation becomes illicit. If it is demonstrated that the cause was insufficient, a dispensation which has a successive course ceases for the future; but one which had to be efficacious once for all falls or not according to the prudently estimated mind of the one dispensing and his power.

Of itself dispensation is conceded only to subjects. Yet law sometimes extends the benefit of dispensation to non-subjects, for instance to exempt religious. According to the mode in which power has been made for him, a delegated dispenser can or cannot dispense with himself.

Dispensation can also be sought and obtained for another, nor of itself does it require the consent of the one dispensed. A dispensation which takes away an impediment or incapacity is beneficial everywhere, as is also a personal one; a real one benefits all within the territory.

A general faculty of dispensing, since it is a grace made to the one dispensing, is to be interpreted broadly, otherwise than the dispensation itself, since it is a wound of the law, unless it has been conceded motu proprio, or for the common good, or to the community itself, or by law.

A dispensation ceases by revocation, whose author can be the legislator or one who has a general power of dispensing; it also ceases by accepted renunciation, by the death of the one dispensed, when the end or cause entirely ceases, if the matter has a successive course, but not if the cause has been brought to an irrevocable act, such as marriage. If use of the dispensation has not yet been made, the mind of the one dispensing must prudently be explored.