Summa Theologiae Moralis, vol. I: De Principiis

On Dispensation.

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

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

1. Relaxation, i.e. exemption, remission, suspension, removal.

So it is distinguished a) from interpretation and epikeia which only declare that the law does not oblige here and now (e.g. because of excusating causes) or according to the sense of the words or contrary to their sense ; b) from permission which only does not impede nor punish the violation of law ; c) from license which is had from this that law disposes something to be prohibited, not absolutely but only e.g. that it not be done without the will of the superior at least presumed, which condition being posited, the law is not suspended but never obliged, e.g. let no one export wheat without license, or go out of the house ; whence license is a faculty granted 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 judiciary power, not legislative. All of these do not remove the obligation of the law itself nor are against but according to law.

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

So it is distinguished : a) from abrogation and derogation, by which the law is extinguished totally or partially but with respect to the community, i.e. for all and forever ; b) from privilege which constitutes positive right while dispensation operates merely negatively ; moreover it is permanent and stable and not always against but often beyond law, e.g. the privilege of absolving or dispensing.

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

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

382. Dispensation is given in human law because of the variation of cases and circumstances, which the legislator cannot foresee : for it happens that a precept which is for the common good for the most part, is not suitable for this person or in this case, because something better would be impeded or something evil induced. — It is however 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 a legitimate dispensation three things are required : the power of dispensing, the will of dispensing manifested, the just cause of dispensing.

383. For dispensation the power of dispensing is required. — The faculty of dispensing pertains to public power of jurisdiction. Therefore some have it :

A. Either by ordinary power, i.e. by the force of office : those namely who can enact laws, in their own laws, those of predecessors and inferiors : for « every thing, by whatever causes it is born, by the same is dissolved ». These are the Roman Pontiff with respect to all ecclesiastical laws, and bishops, and other local Ordinaries, with respect to diocesan laws including synodal (c. 82), unless they have been confirmed in specific form so that the Roman Pontiff has made them his own.

B. Or by delegated power : for an inferior cannot dispense in the law of a superior unless this be granted to him, because an inferior has no power over the will of a superior, on which the whole force of law depends. Inferiors however have the faculty :

Either a) by quasi-ordinary power or from right or custom : those are they who have an office to which right or custom has attached the power of dispensing in certain laws of superiors, namely

α) Local Ordinaries (bishops and vicars general, the see being vacant the capitular vicar, prelates nullius, administrators, vicars and prefects apostolic).

These « from the general laws of the Church... cannot dispense, except in some particular case, unless this power has been explicitly or implicitly granted to them » (c. 81) ; but it is implicitly granted, if the law says indefinitely : to be able to be dispensed, or until dispensed, or also explicitly, as is done for irregularities arising from occult offense, except that which arises from voluntary homicide or abortion, or another brought to the judicial forum (can. 990), and for penalties latae sententiae, according to the norm of can. 2237. This however they can generally

1. in certain lighter causes occurring more frequently : thus e.g. in singular cases they can dispense their subjects individual faithful individuals or families, even outside the territory and in the territory also for travelers, from the common law about the observance of feasts, likewise about the observance of abstinence and fasting or also of both, indeed for a particular cause of a great gathering of people or of public health they can also dispense the whole diocese or place from fasting and from abstinence or also from both laws (can. 1245 § 1 and 2) ; likewise for prohibited books (can. 1402) ; likewise by centenary custom in the recitation of the hours ;

2. in cases of urgent necessity, if there is difficulty of recourse to the Holy See and at the same time there is danger of grave harm in delay, and it concerns a dispensation which the Holy See is wont to grant (can. 81), e.g. in matrimonial impediments (can. 1043 and 1045) and from irregularities in case of danger of grave infamy for exercising orders (can. 990) ;

3. in doubt of fact, even for irritant laws, provided it concerns laws in which the Roman Pontiff is wont to dispense (can. 15) ;

4. as to laws of a provincial or plenary council, but only in particular cases and for a just cause (can. 82 and 291, § 2).

β) Parish priests by right already firm custom, in laws about the observance of feasts and of abstinence and fasting.

But thus only in singular cases and for a just cause individual faithful and individual families, not however the whole community (can. 1245 § 1).

γ) Religious superiors, in exempt clerical religions.

They are Ordinaries, namely generals or provincials, in certain causes determined by law, less frequently however than local Ordinaries¹ ; and provincials for laws enacted in the provincial chapter, generals for laws enacted in the general chapter. Likewise these and superiors of the house for laws about the observance of feasts, fasting and abstinence, with their inferiors, but only in the manner of the parish priest (can. 1245 § 3).

δ) Confessors cannot do this however.

They can only declare laws, not indeed of themselves dispense in them, unless something of this is expressly granted.

Thus from delegated right in more urgent occult cases in which the Ordinary cannot be approached² : 1) in the case in which danger of grave harm or infamy is imminent, over all irregularities arising from occult offense but only for the exercise of the order received, except the irregularity arising from voluntary homicide or from the procurement of abortion, or another already brought to the judicial forum (can. 990) ;

2. likewise over the observance of a vindictive penalty latae sententiae, if the guilty party has otherwise betrayed himself with infamy and scandal ; but with the burden of having recourse within a month to the competent superior if it can be done without grave inconvenience (can. 2290) ;

3. over all ecclesiastical matrimonial impediments, except the impediments of priesthood and of affinity in the direct line from consummated marriage (can. 1044-1045).

Or b) by purely delegated power or from a man : those are they who have been expressly commissioned for this by those who have ordinary or quasi-ordinary power, or delegated power for the universality of causes or with the faculty of subdelegating.

Thus bishops by the force of quinquennial and triennial faculties and extraordinary faculty can dispense in many [cases].

About all of which the following rules hold.

384. Rules about the power of dispensing.

1. He who has ordinary power of dispensing can also commute, just as in to place of one obligation to impose another.

2. He who has delegated power of dispensing can also commute in laws which impose a burden, e.g. fasting, recitation of the hours, — not however in laws which were enacted for other ends pertaining to the common good, e.g. to be avoided inconvenience, to preserve order, such as are matrimonial impediments, because compensation can contribute nothing to their proper ends.

3. He who has power of dispensing of himself has the power of commuting, unless he be explicitly restricted to dispensations with respect to the case.

4. He however who has the power of commuting does not therefore have the power of dispensing, nor of commuting to less, otherwise he would dispense in part.

5. He who has the faculty « of commuting by dispensing », can commute to less, not simply dispense.

385. Whom they can dispense. — They can dispense of themselves with subjects (c. 201, § 1), also with vagrants (c. 14, § 2), with exempts at least with the presumed consent of their superior (because they are not of lesser condition, according to rule 61 ; What is granted for the favor of someone is not to be turned to his harm), and also with travelers who otherwise would be held to approach their own superior, which can often not be done without great inconvenience (c. 1245, 2233, § 3, 2237, 1043-1045), unless however the contrary be positively established as e.g. c. 990, § 1 and 1402, § 1 ; indeed with himself because they are not of lesser condition than subjects and because acting in the name of the superior he dispenses himself as subject to him, not however in his own laws, in which he does not need dispensation since he is not directly subject to them.

386. For dispensation the will of dispensing present or antecedent is required ; however a presumed will about the future does not suffice, because this is not an absolute will, e.g. if the superior knew he would dispense. And thus dispensation is distinguished from license : for in this case the action is not prohibited simply but only that it be not done without the consent of the superior, which suffices as presumed ; but when the action is absolutely prohibited and therefore evil, the will which removes the prohibition and evil is necessary at present. — This can be manifested 1) expressly, by words, writings, signs ; or 2) tacitly from facts : a) if the superior knows that the law is being acted against and does not contradict, when he easily can and should, so that from the circumstances the silence cannot be explained except by supposing dispensation ; b) if with certain knowledge he commands or grants what cannot be done without dispensation, e.g. the Pontiff knowing gives a benefice to an irregular, or commands to eat meat on a forbidden day.

387. For dispensation a just cause known and examined with mature counsel is required. — For a) if the dispenser dispenses according to his own will, either he will be unfaithful, or imprudent ; unfaithful if he has no just cause, for he exercises power for a private good, and thus sins by destruction, while he disturbs the right order of society, and (by committing acceptance of persons) gives occasion for complaints, by exempting one while others are pressed by the law ; — imprudent if he ignores the reason of dispensing. Moreover b) because to exempt from the law him who is not to be exempted from the law, is acceptance of persons ; c) because it is base and against natural law that a part without cause should not be conformed to the whole.

1. If the just cause is lacking, a) and it be done in the law of a superior, the dispensation is illicit as being an abuse of another's power, and indeed gravely or lightly according as the law obliges under grave or under light, and ordinarily invalid because the superior is not considered to commit the power of dispensing without cause, which he could not grant without sin (can. 84, § 1) ;

b) if it be done in his own law, the dispensation is valid because positive law does not bind without the will of the superior, but illicit gravely or lightly according to the degree of disturbance following : although it is a sin, acceptance of persons which is grave of its kind, against distributive and legal justice, which is apt to generate scandal and harm the common good, nevertheless in a particular case in fact it will often be light, because ordinarily it is not very harmful ; it is however grave if notable scandal arises, or harm to the dispensed, or burden to others ;

c) the subject knowingly asking for a dispensation without legitimate cause, sins gravely or lightly, according as he leads the dispenser to grave or light sin (even if the superior be of good faith) ; however using the dispensation, if it is valid, apart from scandal he does not sin.

2. If only the knowledge of the cause is lacking : a) if it be done in the law of a superior, the dispensation is illicit, and also invalid if the delegating party has posited the examination of cause as a condition of dispensation, or even just cause and the cause be lacking ; otherwise its validity is probable ;

b) if it be done in his own law, the dispensation is valid but illicit ;

c) if with diligence employed, it is not certain but probable that the cause suffices, the dispensation is licitly and validly granted, because in moral matters evidentness cannot always be had but a prudent and probable reason suffices (can. 84, § 2).

In doubt about the validity of a dispensation it is considered valid : one must stand for the value of the act.

388. The just cause of dispensing can be : necessity e.g. a grave headache or weakness from fasting, piety e.g.

service of worship for dispensing from irregularity, or utility at least mediately redounding to the common good, whether intrinsic or extrinsic.

Intrinsic is the preservation, difficulty or inconvenience of the observance of the law accidentally joined, e.g. preservation from scruple or temptations, difficulty of journey in winter. Extrinsic is the good of the dispenser e.g. so that he may show himself liberal or benign ; the good of the dispensed e.g. utility for a good merit, dignity of the petitioner ; the common good e.g. to prevent too many transgressions, to increase common joy. So also the payment of money for the utility of the Church, compensation of merits, reconciliation of peace³.

It is namely as it were a cause with a double effect : the good coming from the dispensation must compensate the evil caused by it, — The cause however must not be so great that it certainly excuses of itself from the observance of the law, or probably if the superior cannot be approached, because then dispensation is not needed, since the law has probably ceased ; nor can it be minimal or whatever is small, but an intermediate cause suffices.

The cause of dispensation need not exist when the dispensation is asked for or when it is inchoatively (e.g. mandatorily) granted, but when it is definitively and effectively granted or promulgated (can. 41). Moreover it must remain up to the inchoate use and during the use, if it has been given for a morally divisible and revocable act and the cause by its nature is temporary ; whence dispensation is given under a tacit condition if the cause endures, e.g. dispensation from the recitation of the hours or from fasting because of infirmity ; — but it need not remain if it has been given for a morally indivisible and irrevocable act, and the cause by its nature is perpetual and therefore, if it ceases, it is accidental ; whence dispensation is given absolutely, e.g. dispensation from irregularity because of poverty is valid even if the poverty has ceased ; dispensation from a matrimonial impediment for legitimating offspring is valid even if, the dispensation having been granted, the offspring dies.

389. Dispensation can be vitiated by violence, fear, and error.

A. Violence strictly so called or perfect and absolute invalidates it because it renders it involuntary (can. 103, § 1).

B. Fear of itself does not invalidate, because it does not remove the will of dispensing, unless it has been so grave as altogether to disturb reason ; whence the dispensation is considered valid, unless something else is provided by law (can. 103, § 2), as for remission of a penalty extorted by fear (can. 2238).

C. Error arising either from subreption, i.e. suppression of the true, or from obreption, i.e. expression of the false⁴ invalidates if it concerns

a) the substance of the object or thing, or the quality which enters into the substance of the thing about which dispensation is given, e.g. affinity in place of consanguinity (can. 40) ;

b) the subject or person to whom it is given, e.g. Peter in place of Paul (can. 40) ;

c) those things which are expressly required for validity by the style of the curia, even if the superior would have dispensed otherwise (can. 42, § 1) ; unless however the clause motu proprio be added to the dispensation (can. 45) ;

d) the final or motive cause which so moves to dispensing that, this being removed, the dispensation would not have been given, if the unique or all the final causes alleged are false (can. 42, § 2) ; unless however it be established by exception of law, as for lesser matrimonial impediments (can. 1054).

2. Outside these cases it is valid, e.g. if the error concerns the accidents of the thing, or the name of the person or place or thing provided that, in the judgment of the Ordinary, there is no doubt about the person or thing itself (can. 47), or about a merely impelling cause without which the dispensation would however have been given but which moves to dispensing more easily, or if it is extrinsically independent with respect to the thing requested, even if it would not have been dispensed otherwise : for here and now the dispenser wills to loose the bond.

3. The defect of obreption or subreption in only one part does not invalidate another, if several dispensations are granted at the same time (can. 42, § 3).

390. Remarks. — 1° Canon 84, § 2 : « A dispensation in doubt about the sufficiency of cause is licitly asked and can be licitly and validly granted ».

2° Canon 85 : « Strict interpretation is subject not only to the dispensation according to the norm of can. 50 (about a law for private advantage), but also to the very faculty of dispensing for a certain case granted » ; — not however to a general faculty whether ordinary or delegated for the universality of causes, since it is favorable and granted beyond law, and therefore admits broad interpretation (can. 200 § 1).

3° Canon 86 : « A dispensation which has a successive course (and not all its effect at once, like irregularity or the removal of a matrimonial impediment) ceases in the same ways as a privilege, and also by the certain and total cessation of the motive cause (whether negative or contrary). Whence it also ceases 1) by revocation of the granting superior made known to the subject (c. 71 and 60), which the legislator can always validly effect, an inferior delegate only for a just cause ; 2) by renunciation made by him who can renounce, and accepted by the competent superior (c. 72) ; 3) by the resolution of the law (and death) of the granter if the dispensation has been given ad beneplacitum (c. 73), or with an equivalent clause : until I shall have wished, until it shall have pleased, etc. ; otherwise if it has been given : until I shall have revoked ; 4) by the death of the person to whom it was granted if the privilege was personal ; if local, the place perishes unless it is restored within fifty years (c. 74-75) ; 5) by the lapse of time or completion of the number of cases for which it was granted (c. 77) ; 6) if the circumstances of things are so changed in the judgment of the superior that the dispensation has become harmful or its use illicit (c. 77) ; — but not by non-use alone unless it be burdensome to others and there be joined a legitimate prescription or tacit renunciation (c. 76).

A dispensation however which has all its effect at once, if it is granted absolutely, does not cease even by the certain and total cessation of the motive cause.

4°. About the invalidity of dispensation hold :

Canon 43 : « A favor 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 one having power, without the assent of the Sacred Congregation or Office with which or with which of them the affair was begun, saving the right of the Sacred Penitentiary for the internal forum ».

Canon 44, § 2 : « A favor denied by the Vicar General and afterwards obtained from the Bishop, no mention of this denial being made, is invalid ; but a favor denied by the Bishop cannot be validly obtained, even with mention of the denial, from the Vicar General, the Bishop not consenting ».

Canon 53 : « The executor of a rescript invalidly exercises his office, before he has received the letters and known their authenticity and integrity, unless previous knowledge of them has been transmitted to him by the authority of the writer ».

5°. About the cessation of the power of dispensing is to be said according to the mind of can. 207 and 208.

6°. To avoid simony, a dispensation must be gratuitous, although modest contributions may be required by the title of chancery expenses, as e.g. can. 1056.

7°. A real or territorial dispensation holds in the territory ; a personal dispensation, as is that which removes an impediment or incapacity, everywhere ; a mixed dispensation (real and personal) holds for all in the territory, for subjects also outside the territory.