§ III. On Rescripts

I. Notion. A rescript is the response of an ecclesiastical Superior, given in writing, by which a right is granted at someone's supplication, relation, or consultation.¹

¹ Cf. Vermeersch, Epitome Iuris Canonici, I, n. 122 sq.

II. Division. Rescripts are divided:

1. Into rescripts according to law, beyond law, and against law.

2. Into rescripts of grace and of justice, according as they grant a favor without any connection with judicial matter, or determine a right between contending parties.

3. Into rescripts in gracious form and in commissory form, according as they do not require, or do require, an executor.

III. Obtaining of a rescript. All who are not expressly prohibited can freely obtain rescripts from the Apostolic See and from other Ordinaries, both for themselves and for another (can. 36, § 1). Nevertheless no one should seek from another Ordinary a grace denied by his own Ordinary, without any mention being made of the denial; but once mention has been made, the Ordinary should not grant the grace unless the reasons of the denial have been had from the prior Ordinary (can. 44, § 1). But if the mention of which there is question is omitted, the concession of the grace is nonetheless of itself valid.

I said that a rescript can also be obtained for another; concerning this note that this can also be done without the other's assent. And although he himself can fail to use the grace granted through the rescript, nevertheless the rescript has force before his acceptance, unless something else appears from the clauses added (can. 37).¹

¹ Cf. Sacred Congregation of Religious, August 1, 1922 (A.A.S. XIV, p. 501).

IV. Requisites for validity. There is required:

1. That the person receiving the rescript be capable of obtaining the grace of which there is question. Furthermore, first, excommunicated persons to be avoided; second, other excommunicated persons, interdicted persons, and suspended persons after a declaratory or condemnatory sentence, cannot validly obtain any pontifical grace unless mention of the censure is made in the pontifical rescript (can. 2265, § 2; 2275, 3°; 2283). Outside these cases, graces and dispensations of every kind granted by the Apostolic See are valid even for those bound by censure (can. 36, § 2).

2. That the matter be suitable for a rescript. Now rescripts, even those issued motu proprio, against the legitimate custom or particular statute of some place, or against a right already acquired by another, are not sustained unless an express derogatory clause is added to the rescript (can. 46).

3. That order be observed in the petition. Furthermore, first, a grace denied by one Sacred Congregation or Office of the Roman Curia is invalidly granted by another Sacred Congregation or Office, or by the local Ordinary even if he has the power, without the assent of the Sacred Congregation or Office with which, or with whom, action was begun, with the right of the Sacred Penitentiary for the internal forum preserved (can. 43). Second, a grace denied by the Vicar General and afterward obtained from the Bishop, with no mention made of this denial, is invalid; but a grace denied by the Bishop cannot validly be obtained from the Vicar General, even with mention of the denial made, unless the Bishop consents.

4. That certain conditions not be lacking, namely those which in rescripts are expressed by the particles "if," or "provided that," or another of the same signification (can. 39); and that the petitions rest upon truth (can. 40), and indeed, in rescripts of which there is no executor, at the time at which the rescript was given, but in the others at the time of execution¹ (can. 41). But that petitions must rest upon truth you should understand in this way:

a) Subreption, or reticence of the truth in the petitions, does not prevent the rescript from having force and being ratified, provided those things were expressed which, by the style of the Curia,² must be expressed for validity (can. 42, § 1). Indeed when the clause Motu proprio is added to rescripts obtained at someone's petitions, they do have force if in the petitions a truth otherwise necessarily to be expressed is kept silent, but not if a false final cause, and that the only one, is proposed (can. 45).

b) Nor does obreption, or presentation of what is false, stand in the way, provided either the only cause proposed, or at least one motive cause³ out of several proposed, is true (can. 42, § 2). Indeed a dispensation granted from a lesser impediment of Matrimony⁴ is invalidated by no defect either of obreption or of subreption, even if the only final cause set forth in the petitions was false (can. 1054).

c) Rescripts are not made invalid by error in the name of the person to whom or by whom they are granted, or of the place in which the person dwells, or of the matter about which there is question, provided, in the judgment of the Ordinary, there is no doubt about the person or the matter itself (can. 47).

Note. If it happens that two rescripts contrary to one another are obtained concerning one and the same matter, the particular prevails over the general in those things which are expressed particularly. If they are equally particular or general, the earlier in time prevails over the later, unless express mention of the earlier is made in the latter, or unless the earlier petitioner has not used his rescript through fraud or notable negligence. But if they were granted on the same day and it is not clear which petitioner obtained first, both are invalid, and, if the matter permits, recourse must again be had to him who gave the rescripts (can. 48).

¹ For example, someone seeks a dispensation from a greater matrimonial impediment so that offspring may be legitimated. A little after the dispensation has been granted, the offspring dies. In this case, when the rescript does not require an executor, the Matrimony nevertheless can be contracted, because the cause alleged was true at the time of concession. But when the rescript requires an executor, the Matrimony cannot be contracted because, as is supposed, at the time of execution the offspring was already dead, and so the cause alleged no longer rested upon truth at that time.

² The style of the Curia is, as it were, the norm of proceeding in seeking or granting graces, or in treating judicial matters; I mean a norm received by use or established by pontifical decrees. What things, in the various kinds of rescripts, must be expressed for validity cannot be designated by one single rule; but insofar as it seems necessary, it will be explained in its own place.

³ The motive or final cause is that which, whether one simple cause or a complex of several causes, suffices of itself for granting the favor. The impulsive cause is that which indeed does not suffice, but nevertheless aids the motive cause, or impels the superior to grant the favor more quickly or more easily. Which cause is motive and which only impulsive is different in different matters, and must be estimated only from the law and the style of the Roman Curia.

⁴ Can. 1042 sets forth the lesser impediments of Matrimony.

V. Time at which rescripts have effect. Rescripts by which a grace is granted without an interposed executor have effect from the moment at which the letters were given; the others from the time of execution (can. 38).

VI. Interpretation of a rescript. 1. Rescripts are to be understood according to the proper signification of the words and the common usage of speaking, nor should they be extended to cases other than those expressed (can. 49).

2. In doubt, rescripts which refer to lawsuits, or harm rights acquired by others, or are opposed to a law for the advantage of private persons,¹ or finally were obtained for the acquisition of an ecclesiastical benefice, receive strict interpretation; all the rest broad (can. 50).

¹ For example, prerogatives established by law for minors.

VII. Execution of a rescript; concerning this, certain things must first be noted beforehand:

1. Things to be noted beforehand. Among rescripts, as was said in n. 204, some do not require an executor, while others require one. Furthermore:

a) Rescripts which do not require an executor are said to be granted in gracious form, and for the most part are sent directly to the petitioner. Now a rescript of the Apostolic See in which no executor is given must be presented to the Ordinary of the petitioner only when either this is prescribed in the same letters, or there is question of public matters,¹ or certain conditions must be verified² (can. 51). In cases of this sort the Bishop only subscribes: "We have seen" or "We have recognized"; he does not write: "We approve."

b) Rescripts which require an executor are said to be granted in commissory form, and generally are sent not to the petitioner, but to the executor, who commonly is the Ordinary of the petitioner himself. Moreover, the executor can be necessary or voluntary. If he is a necessary executor, only the bare ministry is committed to him, that is, only the execution of the grace, and of itself it is not licit for him to deny the execution. In the case, just as if there is question of a rescript granted in gracious form, the grace has already been made. If he is a voluntary executor, the faculty of granting the grace is committed to him, and the exercise of this faculty is left to his prudent judgment; consequently he could still deny the execution of the grace (cf. can. 61).

2. Things to be observed. a) "The executor of a rescript invalidly performs his office before he has received the letters and recognized their authenticity and integrity, unless prior notice of them has been transmitted to him by authority of the one rescripting" (can. 53).

b) If the mere ministry of execution is committed in the rescript, execution of the rescript cannot be denied unless either it is manifestly clear that the rescript is null by defect of subreption or obreption, or conditions are added in the rescript which the executor knows have not been fulfilled, or the one who obtained the rescript seems to the executor so unworthy that the concession of the grace will be an offense to others. If this last occurs, the executor, leaving the execution aside, should immediately make the one rescripting more certain about the matter (can. 54, § 1).

But if in the rescript the concession of the grace is committed to the executor, it belongs to him, according to his prudent judgment and conscience, to grant or deny the grace (can. 54, § 2).

c) Rescripts for the presentation of which no definite time exists can be exhibited to the executor at any time, provided fraud and deceit are absent (can. 52). Besides, the executor must proceed according to the norm of the mandate, and unless he has fulfilled the essential conditions added in the letters and has observed the substantial form of proceeding, the execution is invalid (can. 55). In addition, the execution of rescripts which regard the external forum must be made in writing (can. 56).

d) The executor of rescripts can substitute another for himself according to his prudent judgment, unless substitution has been prohibited, or the person of the substitute has been predefined. If, however, the industry of the person was chosen, it is not licit for the executor to commit anything to another except preparatory acts (can. 57). Finally, any rescripts can also be mandated to execution by the successor of the executor in dignity or office, unless the industry of the person was chosen (can. 58).

e) It is lawful for the executor, if he has erred in any way in the execution of rescripts, to mandate the same things to execution again (can. 59, § 1).

f) As regards taxes for the execution of rescripts, the prescription of can. 1507, § 1, is to be observed (can. 59, § 2). This canon establishes as regards rescripts: "To predefine taxes... for the execution of rescripts of the Apostolic See..., to be paid in the whole ecclesiastical province, belongs to the provincial Council or the meeting of Bishops of the province; but a predetermination of this sort has no force unless first approved by the Apostolic See." Furthermore, in matrimonial dispensations for non-poor persons, only some modest payment by title of chancery expenses can be demanded by the Ordinaries of places or their officials, with any contrary custom reprobated. If they have demanded some emolument, they are held to restitution. Except if the faculty of demanding another emolument has expressly been given to them by the Holy See; and if they have demanded it, they are held to restitution (can. 1056).

¹ For example, concerning an indulgence or sacred relics to be exposed for public veneration.

² As if the Ordinary must examine the suitability of the place for a private oratory.

VIII. Revocation of a rescript. A rescript is revoked only through a particular act of the Superior, but not through a contrary law, unless something else is provided in the law itself, or the law was passed by a Superior of the one rescripting (can. 60, § 2). Yet a rescript revoked through a particular act of the Superior endures until the revocation is signified to him who obtained it (can. 60, § 1).

Note 1. Through the vacancy of the Apostolic See or of the diocese, no rescript of the same Apostolic See or Ordinary is destroyed, unless something else appears from the clauses added, or the rescript contains a power granted to someone of granting a grace to particular persons expressed in the same rescript, and the matter is still intact (can. 61). From these things it follows that a rescript does not cease during vacancy of the See: first, when the grace has already been made, which obtains, as we said, when the rescript is granted in gracious form or indeed in commissory form, but with a necessary executor; second, when the grace is to be made and the matter is no longer intact.

Note 2. If the rescript contains not a simple grace, but a privilege or dispensation, the prescriptions of the canons which follow are besides to be observed (can. 62), that is, those which treat privileges and dispensations (n. 196 sq.; n. 178 sq.).