Summa Theologiae Moralis, vol. I: De Principiis

On the Quality and Extension of the Obligation of Irritant Law.

352. An irritant law is one which renders some act invalid or null. To it are reduced, as species to genus, an inhabilitating law, which decrees that some person is incapable for this or that act ; whence irritation directly regards the act, and incapacity directly regards the person ; in practice however and morally speaking both come to the same, because the act is always rendered invalid whether immediately or mediately.

Irritant law differs a) from a prohibiting law, because the latter renders the prohibited act illicit, not invalid ; whence are distinguished a merely prohibiting law (e.g. an impeding impediment of matrimony), a merely irritant law which only irritates and does not prohibit the act (as can happen if the superior irritates a religious vow), and a law both prohibiting and irritant (e.g. a diriment impediment of matrimony) ;

b) from a penal law strictly so called, because the latter establishes a penalty because of fault ; whence are distinguished a penal irritant law which irritates as a penalty for the offense (e.g. formerly ordained without a certain title, and still today a beneficiary omitting his office invalidly receives the fruits), and a directive irritant law which irritates for the common good (e.g. clandestine marriage) or for the protection of certain persons (e.g. religious profession before the age of 16, a promise extorted by fear, alienation of the goods of the Church without the consent of the chapter) : then the irritation is a penalty improperly so called ;

c) from a permissive law which does not acknowledge the act or allows it to be neglected by others, or from a simple absence of law by which the act is not protected in the external forum (irritation improperly so called).

Moreover, as penal law, so irritant law has effects by the very fact, or by the judgment of a judge : for sometimes by the very law or right the act is most fully irritated, as happens for matrimonial impediments, and for the simoniacal collation of a benefice (can. 729) ; — sometimes it is irritated by the law so that for the full effect the declaratory judgment of a judge is required, e.g. an election made if more than a third part of the electors were not lawfully convoked (can. 162, § 3), a resignation made from grave unjustly inflicted fear, fraud or substantial error or simony (can. 185) ; cf. also can. 1679, 2238 : in which case the force of the judgment is retroacted to the moment when the act was done and it is null from the beginning (can. 1679-1682) ; — sometimes it is not irritated by the law, but by a decreeing or annulling judgment of a judge, because the law establishes that the act can be invalidated by competent authority, or rescinded, as acts proceeding from grave fear or fraud (can. 103 § 2, 104, 153, 162 § 2, 1317 § 2, 1684 § I, 1689) : then the invalidity is from the moment of the judgment.

The judgment of the judge and consequently the annulment can be impeded by licit means, indeed the act remains valid, even if the judgment is impeded by illicit means ; which if done by unjust means, an obligation to repair the damage can arise.

353. Principles. I. An irritant law obliges judges to regard the act as invalid or to invalidate it ; others, not to omit the act, but to regard it as invalid or not to insist on an invalid act.

II. A penal irritant law does not oblige against a non-committed fault nor has effect if fault is lacking : for it is founded on a presumption of a particular fact ; whence invincible ignorance excuses from it, because the established penalty is for fault and supposes it. Thus if a beneficiary from inculpable forgetfulness omits, e.g. vespers of the office and compline, he makes his fruits.

III. An irritant law which is also directive always obliges and has effect even if fault is lacking or the law is ignored : it is founded on a presumption of common danger, and the cause of annulment subsists even in the case of ignorance, namely the common good. Hence canon 16, § 1 : « No ignorance of irritant or inhabilitating laws excuses from them, unless something else is expressly said ».

Accidentally however the obligation ceases

a) because of common necessity : thus the impediment of clandestinity ceases, if the parish priest or the Ordinary or the delegated priest who should assist at the marriage cannot be approached, and it is foreseen that this condition of things will last for a month (can. 1098) ;

b) also because of private necessity in a more urgent case, if the Church is known to dispense (or it can be presumed), as happens for almost all impediments of ecclesiastical law, both when the danger of death is urgent, and if, with all things ready for the marriage, the marriage cannot be deferred without probable danger of grave evil (can. 1043-1045 ; 1098).

354. Remarks. — 1) About irritant laws let there be noted can. 11 : « Those laws alone are to be regarded as irritant or inhabilitating by which either the act is null or the person is incapable is established expressly or equivalently (i.e. by words equivalent to it, e.g. by prescribing the necessary form of the act or the substantial conditions) ».

2. Hence irritation of itself is not presumed annexed to a prohibiting law, but of itself and certainly is to be proved. Whence can. 15 : « Laws, even irritant and inhabilitating, in doubt of law (founded and reasonable) do not urge ».

3. On the contrary, for an irritant law to be also prohibiting, an express declaration is required, unless the act is in itself base or otherwise illicit.