point — Wouters, Manual of Moral Theology
Point II. On the Power of Dispensing
I. Notion. The power of dispensing is the faculty of relaxing a law in a special case. It differs first from the power of annulling vows; for this pertains to dominative power, but the power of dispensing pertains to the power of jurisdiction; second, from the power of declaring that there is present a cause excusing from obligation.
II. Division. The power of dispensing, like the power of jurisdiction in general (n. 96), is divided especially into ordinary and delegated, according as it is annexed to an office by the law itself or has been committed to a person.
Note. As regards the acquisition, interpretation, extension, and cessation of the power of dispensing, what was said about the acquisition, interpretation, and cessation of jurisdiction in general has force (nn. 97-100).
III. Active subject. Dispensation can be granted by the founder of the law, by his successor or Superior, and also by him to whom the same have granted the faculty of dispensing (can. 80). Specifically:
- The Supreme Pontiff, by ordinary power, can dispense in all ecclesiastical laws, even in those which have been passed by an Ecumenical Council or by the Apostles by their own authority.
Question. Whether the Supreme Pontiff can dispense in divine law.
Response I. He cannot dispense in divine law, neither natural nor positive. Not in divine-natural law, since it does not admit dispensation (n. 86). Not in divine positive law, as is sufficiently gathered from the fact that the Church never dispenses in it, for instance in the laws of Christ. Hence the stated power is not considered to be contained even in these words of Christ: "Whatever you shall loose upon earth shall be loosed also in heaven"1 (St. Thomas, I-II, q. 97, a. 4, ad 3; St. Alphonsus, VI, n. 19).
Response II. The Supreme Pontiff, as practice confirms, can by vicarious power dissolve, or quasi-dissolve, bonds of divine law which are founded in a human act, such as vows, oaths, and ratified marriages. But it is disputed of what character the act of dissolving or quasi-dissolving placed by the Supreme Pontiff is. According to some, he can merely interpret divine law, that is, declare that it is not urged by God in this or that case. But he truly can dispense improperly, insofar as, namely, by vicarious power he is able truly to remit a right which is founded in a human act, suppose in a vow, etc.; and once the right has been remitted, the obligation ceases.2 These things will be explained in the treatise on Matrimony.
- Ordinaries3 of places4 can dispense: first, in diocesan laws; second, in laws of a provincial and plenary Council, but only in particular cases and for a just cause; third, in laws which the Roman Pontiff has specifically passed for that particular territory, but only to the extent that, according to what will be said in the note, all Ordinaries can dispense in general laws of the Church (can. 82).
Note. Ordinaries, both of places and others, cannot dispense, not even in a particular case, either from general laws of the Church or in laws which the Roman Pontiff has specifically passed for that particular territory, unless either this power has been explicitly or implicitly granted to them, or recourse to the Holy See is difficult, and there is danger of grave harm in delay, and there is question of a dispensation which the Apostolic See is accustomed to grant (can. 81, 82). Furthermore, what all Ordinaries can do, first, in doubt of fact, second, as regards laws about feast days, days of fast and abstinence, and irregularities; what Ordinaries of places can do as regards laws about interstices and publications before the reception of Orders or Matrimony, and also about impediments of Matrimony, will be explained in its own place.
Pastors cannot dispense from either a general law or a particular law unless this power has expressly been granted to them (can. 83). Now from can. 1275, § 1 pastors have power, in individual cases and for a just cause, to dispense individual faithful and individual families subject to them in laws concerning the observance of feasts, fast, and abstinence. What pastors, confessors, or all priests can do concerning impediments of Matrimony is explained by can. 1044; this will be treated in the treatise on Matrimony.
Superiors (Guardians, Rectors, etc.) in an exempt clerical religion have the same power as pastors of dispensing from laws concerning the observance of feasts, fast, and abstinence, as regards professed members, novices, and others living day and night in a religious house for the sake of service, education, hospitality, or infirm health (can. 1245, § 3). With sufficient probability, habitual dwelling in the religious house is not required; it suffices that they have remained for one whole day, or have the intention of remaining there for one whole day.5
1 Matt. 16:19.
2 Cf. Suarez, De leg., bk. 2, c. 14, n. 11; Wernz, Ius Decr., I, n. 122; Prummer, Theol. Mor., I, nn. 164, 241.
3 In law, by the name Ordinary are understood, unless someone is expressly excepted, besides the Roman Pontiff, each for his own territory: the residential Bishop, an Abbot or Prelate nullius and their Vicar General, Administrator, Vicar and Prefect Apostolic; likewise those who, when the aforesaid are lacking, succeed meanwhile in governance by prescription of law or from approved constitutions; and, for their own subjects, major Superiors in exempt clerical religions (can. 198, § 1).
4 By the name Ordinary of the place or of places, however, come all those listed, except religious Superiors (can. 198, § 2).
5 Vermeersch-Creusen, Epitome Iur. Can., I, n. 582.
IV. Passive subject. The power of dispensing can be exercised directly only over subjects (can. 201, § 4). With this principle posited, the competent person can dispense:
Subjects by reason of domicile or quasi-domicile who are staying in the territory of the dispenser.
Vagi actually staying in the territory of the dispenser, because they are truly subjects (can. 94, § 2).
Himself, and subjects absent from the territory, unless something else is established from the nature of things or from law (can. 201, § 3).
Travelers staying in the territory of the dispenser, as regards laws concerning the observance of feasts, fast, and abstinence (can. 1245); likewise as regards non-reserved vows (can. 1313); likewise as regards impediments of Matrimony, but with a restriction, as will be noted in its own place; meanwhile cf. can. 1043 sq.
Which persons religious Superiors can dispense was said under III, 4.