What a dispensation is

A dispensation is a relaxation of the law in a particular case for some special reason. The law still remains in force, but by a dispensation one who would otherwise be bound to conform to it is withdrawn from the operation of the law. When a law forbids something to be done without leave, as when a religious is forbidden to go out without the leave of his superior, the going out with leave is not against the law, but is in keeping with it. On the other hand, when one eats meat on a Friday, with a dispensation, the act is against the law, but the obligation of the law has been removed from the person dispensed. As jurisdiction is required to make a law, so ordinary or delegated jurisdiction is necessary for granting a dispensation. Ordinary jurisdiction is that which by law is annexed to an office; delegated jurisdiction is exercised by the commission of one who has ordinary jurisdiction (Can. 197). a good cause is always required in order that a dispensation may be lawfully asked for and granted. All should conform to the laws made for the common good, and the superior who without just cause exempts anyone from the duty of obeying a law is unfaithful to his office, and commits the sin of acceptance of persons. If such a superior uses only delegated authority to dispense, he acts not only unlawfully, but invalidly, because he received his authority to grant dispensations only for a good cause. He therefore exceeds the limits of his authority by attempting to dispense without good reason. Similarly, one who asks for a dispensation without good cause does wrong.

A good cause for granting a dispensation must not be altogether trivial, nor is it so grave that of itself it exempts from the obligation of obeying the law. Beyond saying this, it is difficult to be more precise. Much depends on the particular law in question, and on the circumstances of the case.

What is dispensation? - Dispensation is the relaxation of law in a particular case on account of a special cause. For it happens "that some precept, which is for the advantage of the multitude in the majority of cases, is not fitting for this person or in this case; or through this something better would be impeded, or even some evil would be introduced." S. Th. 1. 2. q. 96, a. 1. It obtains its effect as soon as it has been granted. But in order that someone may use it licitly, it is necessary that it be manifested to him, lest by presuming it he expose himself to danger of violating the law, if perhaps it has not been granted.

It differs from a declaration, by which it is declared that this or that case is not comprehended in the law. It differs from license, which has place when the law does not prohibit a thing absolutely, but only conditionally, namely without the consent and approbation of the superior. Wherefore the bond of law is not relaxed through license, but merely the condition is placed, and when it has been placed, the law no longer has place. Then the law is rather observed, for the law in reality commands that license be sought, if such or such a thing is done, namely that the consent of the superior be sought. It differs from privilege, which can be both against law and also beyond law, and, when it is against law, simply derogates from it, and therefore not only for a case, or for some cases in particular, but for all. It differs also from invalidation, abrogation, and cessation of law, because in these the law is extinguished for all. S. Th. 2. 2. q. 147, a. 4.

Note: Power of dispensing given generally falls back into a privilege beyond law, and is favorable, and therefore has a broad interpretation, but not an extensive one. Generally, for when given particularly it is of strict interpretation. For general power is necessary for the common good and looks to it; not so particular power, which is rather a certain begun dispensation. But dispensation, because it derogates from law, is odious, and is of strict interpretation; unless it is owed, or was granted motu proprio, or to a community, or for the common good, or inserted in the Body of Law. Strict, but not restrictive, unless perhaps the right of a third party is injured. But it must never be interpreted in such a way that it becomes useless or burdensome to him to whom it was granted. R. 61 de R. I. in 6. L. 187, 192, 194, 195.

What things are required for dispensation? - It is necessary that he who gives the dispensation give it knowingly and willingly, but one extorted by fear is valid; and that he to whom it is given, regularly speaking, accept it. For a benefit is not given to one unwilling. L. 1. 9 de Donat. But we must understand as unwilling also him who does not consent. L. 8 § Invitus de Procur. Hence, if another has sought an ordinary dispensation of an impediment, and the spouses, ignorant of this, contract marriage, that dispensation does not profit them. In the case, in itself, it suffices that one accept the dispensation, since a granted dispensation necessarily affects both. But it can be given and accepted even tacitly, and by the fact itself. Regularly speaking, for absolutely one can be dispensed even while ignorant and unwilling. Since it belongs to the legislator to bind and to loose. L. 184, 187; Sanch., de Matr., l. 3, c. 36, n. 3.

On the part of the one granting it, a just cause is required; otherwise the superior would not be a faithful guardian of the law, but an imprudent dissipator. Moreover, natural right dictates that a part ought to be conformed to its whole, unless a just cause excuses. Without a just cause, a dispensation given by the legislator himself is indeed valid, although illicit; but by an inferior, or by a delegate, both illicit and invalid. For the legislator has as his own the power of binding and loosing, to which that just cause is extrinsic; but he is not considered to communicate it to an inferior or delegate except that he use it reasonably. Yet both the legislator dispensing without cause sins lightly, and the dispensed person seeking it; but he who, the law having been removed by dispensation, uses it, does not sin even lightly. For neither the former in giving nor the latter in accepting do injury to anyone, although they injure legal justice. But a delegate dispensing without a just cause in a grave matter sins gravely, since he gravely abuses the power conceded to him. In a grave matter, for in a light matter it does not exceed venial fault. But on the part of the petitioner it is required, both for liceity and for validity, that a true cause be present, since the superior does not dispense unless the petitions rest upon truth. Trent, s. 25, c. 18 de R.; S. Th. 1. 2. q. 97, a. 4; 2. 2. q. 88, a. 10. Moreover, a cause probably just suffices, both for seeking and for granting a dispensation, validly and licitly, lest the matter be too anxious and liable to scruples. Nor indeed is it necessary that it be as great as would suffice of itself for excusing; otherwise the power of dispensing in the superior would become altogether useless. "A cause is the dignity of the petitioner or of the superior, so that he may show himself benign, and also common or private utility and similar things. But in dispensations of impediments for marriages, the payment of money in aid of the Church suffices as a cause, as is the practice." L. 195. Matrimonial dispensations of lesser degree are now granted from reasonable causes approved by the Holy See, and are subject to no challenge. Ord. serv. in Rom. Cur., Norm. pecul., c. 7, a. 3, n. 21. L. 178, 181, 182, 186, 192, 195; l. 3, n. 251; l. 7, n. 353; S. Th. 1. 2. q. 96, a. 6; q. 97, a. 4; 2. 2. q. 63, a. 2, ad 2; Wirceburg., c. 5, a. 2; E. M.

When a just cause exists, is the superior held to dispense? - R. Negatively: if the cause is only sufficient, so that dispensation is permitted; and the superior can either give it or deny it, or give it to one and deny it to another, for it is a mere grace, and therefore free. Moreover, just as dispensation profits the subject, so denial of the same profits the common good.

R. Affirmatively, if the cause renders the dispensation necessary for avoiding common damage, or private damage of great moment, or for procuring common utility, or great private utility; otherwise he would sin gravely or lightly according to the matter; for this is why the power was given to him. "Nevertheless, when dispensation has been denied, even unjustly, the subject cannot act against the law; unless such a case urges as to draw it out from the law. Wherefore if a Bishop unjustly denies dispensation from publications before marriage, from an urgent grave cause it can be contracted without them." L. 179; S. Th. 1. 2. q. 97, a. 4.

In doubt whether a case needs dispensation, is it necessary? - R. Negatively in positive doubt; for the extension of the law to that case remains uncertain. - R. Affirmatively in negative doubt concerning the existence and sufficiency of an excusing cause; for the certain law possesses. But negatively in negative doubt concerning the necessity of dispensation; for then, on the contrary, liberty possesses. L. 97, 180, 192, 195; l. 3, n. 325; l. 4, n. 154; H. A. tr. 2, n. 51.

Is it licit to use a tacit, presumed, interpretative dispensation?

R. To the first: Affirmatively, for the will of dispensing is truly present in the superior; since a tacit dispensation is had when the superior wills something with which dispensation is connected, or when, knowing and able to contradict, he does not contradict.

R. To the second: Affirmatively, for then also the will of dispensing is truly present in the superior, as is reasonably presumed from the hypothesis; for example, if, knowing that you are excommunicated, the prelate confers a benefice upon you. This presumed dispensation, presumed concerning the present, falls back into tacit dispensation.

R. To the third: Negatively, for there is not present, nor does any reason persuade that there is present in the superior, the will of dispensing, but only a reason is present that such a will would be present in the superior if he knew the matter. Yet in matters of lesser moment one could then more easily use epikeia. Nor does it matter that a presumed license concerning the future is valid; for for actions which require for their validity a positive act of the will, an interpretative voluntary is not sufficient, as happens in dispensation, since relaxation of law requires the positive consent of the superior. On the contrary, for actions for which it merely suffices that the superior not be unwilling, as in the case of license to be sought, an interpretative voluntary suffices. L. 187; l. 3, n. 288; Struggl, tr. 1, q. 1, n. 21; Sanch., de Matr., l. 3, d. 35, n. 16, 24.

312. (A) Notion. (a) Dispensation in general is prudent administration; but since it pertains to prudent administration to use moderation, and to remit certain things from benignity, the word dispensation signifies a certain lenity and condescension in the application of laws. - It is usually defined as the relaxation of law made by the superior in some particular case in which the law would otherwise oblige. Therefore it differs from epikeia, which judges that some case is not comprehended in the law; and from abrogation or derogation of law, by which a law is taken away in whole or in part for the whole community.

(b) St. Thomas thus declares the reason why it is sometimes expedient to grant a dispensation:¹ it happens sometimes that some precept, which is for the advantage of the multitude, is not suitable to this person or in this case, because through this something better would be impeded, or even some evil would be induced: therefore it is expedient that in this particular case the law be relaxed; but because it would be dangerous to commit this to the judgment of anyone whatever, except because of evident and sudden danger, it is fitting that he who has the power of ruling the multitude have the power of dispensing in human law, which rests on his authority.

¹ St. Thomas, Ia IIae, q. 97, a. 4.

313. (B) Concerning the author of dispensation. He who has the authority of making law can dispense by ordinary power, - but he who is deputed to this by the legislator himself can dispense by delegated power.

(a) By ordinary or native right, both the legislator and his superior as to this, that is, as to dispensation, can dispense. Concerning the legislator himself and his successor there is no difficulty, since the law, in its whole extent, depends on their will. Wherefore the Supreme Pontiff can dispense in all ecclesiastical laws, even those enacted by an ecumenical council; but a bishop can dispense in the statutes of his own diocese, even those enacted in synod.

The same must be said concerning the superior as to this; for he, in the ecclesiastical hierarchy, has the whole power of inferiors; thus the Pope can dispense in episcopal laws. But a metropolitan cannot dispense in the laws of a suffragan bishop, because he is not his superior as to all things, nor as to this, namely as to the granting of dispensations.

314. (b) By delegated, or borrowed, right, an inferior can sometimes dispense in the law of a superior, namely whenever he has received this power from the superior; by quasi-ordinary right, when this power is permanently annexed to some office; by merely delegated right, when it has been transiently granted by the superior.

Thus Ordinaries, by power delegated from common law, dispense in irregularities arising from occult delict, except the one which arises from voluntary homicide and except others brought to the contentious forum;¹ likewise they dispense in abstinence and fasting with particular persons, indeed sometimes with the whole community;² they dispense in certain impediments of marriage, in a case of urgent necessity.³

¹ Code, c. 990, § 1.

² Code, c. 1245.

³ What bishops can do as to impediments of marriage we explained in the Treatise on Marriage, n. 1046 sq.

Thus also pastors, who by proper right cannot grant any dispensation, by delegated common law, in particular cases, dispense in fasting and abstinence and also in servile works prohibited on a feast day; thus also confessors.⁴

⁴ Code, cc. 1044-1045.

The Roman Congregations likewise have received the power of dispensing in pontifical laws, according to predefined limits.

315. (C) Concerning the subject of dispensation. Since dispensation is an act of jurisdiction, only subjects can be dispensed by a superior. As to the Supreme Pontiff, there is no difficulty: for all the baptized are his subjects.

But as to bishops, and others whose jurisdiction is exercised within the limits of some territory, these things are to be noted: (a) they can dispense with inhabitants and newcomers who, by reason of domicile or quasi-domicile, are subject to them; indeed with vagi, who, since they are subject to the laws of the place in which they are staying, are judged subjects as to the means necessary or useful for salvation, and therefore as to dispensation in the common laws of the Church; more probably also with pilgrims, who in a case of necessity cannot have recourse to their own bishop, and this indeed from the presumed consent of the bishop proper to the pilgrims: for otherwise pilgrims would be deprived of a means very useful for salvation.

(b) Since dispensation is an act of voluntary jurisdiction, and this can be exercised outside the territory, a bishop, pastor, or delegates can dispense with inhabitants and newcomers, even those dwelling outside the territory, provided nevertheless that these remain subjects, that is, retain domicile or quasi-domicile in the territory of the one dispensing.

(c) He who possesses the faculty of dispensing can dispense with himself, unless something else is established from the nature of things or from law, as is clear from the Code, c. 201, § 3: for voluntary jurisdiction, such as the power of dispensing, of itself does not require a distinction of persons, and moreover no law requires it in the present matter. - Hence he who has ordinary or delegated general power of dispensing in laws, or in vows and oaths, can use this with regard to himself.¹

¹ Suarez, liber VI, caput 12, n. 8-12; Sanchez, de Matrimonio, liber VIII, disp. 3; Schmalzgr., in titulo de Constit., n. 65; St. Alphonsus, liber I, n. 183; liber III, n. 249, 256.

316. (D) Concerning the conditions required for dispensation. For validity, there are required:

(a) In the one granting, a just and reasonable cause, if he dispenses in the law of a Superior; but none if he dispenses in his own law or in the law of an inferior; in doubt concerning the sufficiency of the cause, a dispensation can be granted validly.²

² Code, c. 84: "§ 1. Let there be no dispensation from an ecclesiastical law without a just and reasonable cause, with account taken of the gravity of the law from which dispensation is made; otherwise a dispensation given by an inferior is illicit and invalid. - § 2. A dispensation in doubt concerning the sufficiency of the cause is licitly sought, and can be licitly and validly granted."

(b) In the petitioner, there is required the allegation of a thing necessarily to be declared, unless the rescript has been granted motu proprio (Code, c. 45); the truth of at least one final or motive cause at the time when the rescript was given or at the time of execution; and recourse to the competent Superior, especially when a dispensation has already been denied (cf. cc. 43-44).

317. For the liceity of dispensation, there is required a cause at least probably sufficient, under light obligation if the legislator dispenses, under grave obligation in a grave matter if a delegate dispenses.

As to other things, cf. in the Code the titles concerning rescripts and concerning dispensations.

St. Thomas, I-II, q. 97, a. 4; q. 96, a. 6; II-II, q. 63, a. 2, ad 2; q. 88, a. 10 and 11, ad 2; q. 89, a. 9; q. 147, a. 4 and ad 1.

381. Dispensation is the relaxation of a law in a particular case made by one having competent public power of jurisdiction (can. 80). It is said:

1. Relaxation, that is, exemption, remission, suspension, removal.

Thus it is distinguished: a) from interpretation and epikeia, which only declare that the law here and now does not obligate (e.g., on account of excusing causes), either according to the sense of the words or against their sense;

b) from permission, which only does not impede nor punish the violation of law;

c) from license, which is had from the fact that the law disposes that something is prohibited, not absolutely, but only, e.g., so that it not be done without the will of the superior at least presumed; once this condition is placed, the law is not suspended but never obligated, e.g., let no one export grain without license, or go out of the house; whence license is a faculty conceded according to law (e.g., can. 1398);

d) from absolution, which is not the remission of an obligation to be fulfilled in the future, but of fault or penalty contracted in the past, and pertains to judicial power, not to legislative power. All these do not take away the obligation itself of the law and are not against the law, but according to the law.

2. In a particular case; for it is given only to some persons, or if to all, not for all time, whence the law remains in the universal or for the community.

Thus it is distinguished: a) from abrogation and derogation, by which a law is extinguished totally or partially but with respect to the community, that is, for all and in perpetuity; b) from privilege, which positively constitutes a right, while dispensation operates merely negatively; moreover, privilege is permanent and stable and is not always against law, but many times beside the law, e.g., the privilege of absolving or dispensing.

3. Made by one having competent public power of jurisdiction.

Thus it is distinguished: a) from invalidation, for which dominative power of a superior over an inferior suffices, and which touches law only mediately; b) from interpretation, which can be made, and from epikeia, which is always made by a private person; for these knowledge can suffice, and power is not necessarily required.

382. Dispensation is given in human law on account of the variation of cases and circumstances, which the legislator cannot foresee: for it happens that a precept which is for the common good as in most cases is not suitable to this person or in this case, because something better would be impeded or some evil would be induced. But it is twofold: simple dispensation, if the bond of the law is simply relaxed; and dispensation with compensation, if some burden is imposed in place of the law, and then it is called commutation. For legitimate dispensation three things are required: power of dispensing, the will of dispensing manifested, and a just cause of dispensing.

Dispensation, insofar as it is here taken, is a relaxation of the obligation of a law.

§ I

Who can dispense in human law?

I say 2°: By ordinary power there can dispense in his own laws the lawgiver himself, his successor, and the superior to whom the lawgiver or successor is subordinate. An inferior cannot, however, except by delegated power, and so far as has been granted to him either by law, by custom, or by a superior.

The first part is plain; because the obligation of a law depends upon the power of the lawgiver. To the same power it belongs to enact a law and to exempt someone from the law: which is to dispense.

[Therefore a bishop can dispense from diocesan statutes, even if they were enacted in synod. For a synod is not above the bishop, nor does it have jurisdiction and legislative power, since the priests who come together to the synod by right or are admitted have not a definitive but only a consultative suffrage; and the bishop pronounces in all things as legislator according to those votes, or even against them.

No form is prescribed for obtaining dispensations from bishops and other Ordinaries of places, or from prelates of religious orders. This one thing is to be weighed, namely whether they enjoy the faculties necessary for dispensing in matters about which question is raised in various cases.

Since causes reserved to the Supreme Pontiff are referred from all parts of the world to his authority, a twofold tribunal was constituted at Rome for granting dispensations, namely the sacred Penitentiary and the Dataria. The matters with which the authority of the Major Penitentiary, or prefect of the Penitentiary, is concerned are: delays and commutations of simple vows, commutation of the simple obligation of reciting the canonical hours, absolutions from censures and reserved cases, dispensations over irregularities, convalidations of titles, rehabilitations to benefices as well as to offices, dignities and the like, dispensations for religious wishing to pass to a stricter or laxer institute, condonations and remissions of moneys and fruits badly exacted and received in benefice matter, unless prejudice should thence follow to a third person or a certain lord. As for impediments concerning matrimony, the Penitentiary grants dispensations for the internal forum over all occult impediments, or, for the external forum, though in forma pauperum, over public impediments, of which we shall treat in the treatise on Matrimony. Dispensations over impediments public by their nature are expedited by the Dataria. Of these likewise we shall speak in the same treatise.]

Plain also is the second part; because to dispense is an act of jurisdiction. An inferior has no jurisdiction over the law of a superior except insofar as it is conceded to him, either by that superior himself, or by law or custom.

For delegated power is twofold: one from law or custom, which, while granted or annexed in perpetuity not to the person but to the office or dignity, is equated with ordinary power. Cap. Quoniam abbas, de officio delegati, Decretal. lib. I, tit. 29, and L. I, ff de officio ejus cujus commissa est jurisdictio. The other is from man in two ways: either after the manner of grace, in favor of the delegate, and this is of broad interpretation, nor does it expire at the death of the grantor if conferred absolutely; because, according to cap. Si cui, de praebendis, in 6°, « A benefit once granted by a prince ought to endure. » Or after the manner of commission and mandate, in favor of some cause or person, and this is of strict interpretation and expires at the death of the grantor, provided the matter be entire and not yet begun to be put into execution. Cap. Relatum, de officio delegati, and the cited cap. Si cui.

Whence you gather that bishops cannot dispense by ordinary power in the laws of Supreme Pontiffs and councils, yet can in many cases by delegated power.

1° When the law expressly grants this to them: thus Trid., session XXIV, cap. 6, de Reformat., grants them power to dispense in all irregularities arising from hidden delict, excepting that which arises from voluntary homicide and from the others brought to a contentious forum.

2° They can by custom and tacit consent dispense in lighter matters and such as happen frequently, as in fasts, feasts, the Canonical Hours and the like; because this the fitting governance of the diocese requires, nor is it likely that the Pontiff wishes recourse to be had continually to himself for light matters, or such as occur frequently. In fasts and feasts pastors also can do this, by custom.

3° They can, by tacit consent, dispense in things which brook no delay, because it is presumed by law that the Supreme Pontiff wills not that the faithful remain so long in sin or in danger of sinning. Thus they dispense in occult impediments, if these be discovered after marriage contracted with good faith at least on one side; not however in those discovered before the contract, unless perchance they be detected immediately before the celebration, which cannot be deferred without grave scandal. Likewise they dispense in the impediment of seeking the debt which one party contracted through intercourse with a blood relative in the first or second degree of the other.

What I have said hitherto of bishops must be said of prelates of exempt Regulars respectively toward their subjects; because in things pertaining merely to jurisdiction they are as it were the bishops of their own men.