GENERAL NORMS I

(Canons 1-95)

Rev. Augustine MENDONÇA

DCA 5102

Commentary for the Private Use of the Students

Faculty of Canon Law

Saint Paul University
Ottawa, Canada
2004-2005
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INTRODUCTION

1. The Catholic Church today has two Codes of Canon Law, one governing the Latin
Church, Codex iuris canonici,i and the other governing the Eastern Catholic Churches,
Codex canonum Ecclesiarum orientalium,ii and one apostolic constitution, Pastor bonus,
promulgated 28 June 1988,iii “which is added to both Codes as the primary instrument of
the Roman Pontiff for ‘the communion that binds together, as it were, the whole Church’
(ap. const. Pastor bonus, n. 2).”iv

In promulgating the Eastern Code, Pope John Paul II said: “From the very beginnings of
the codification of the canons of the Eastern Churches, the constant will of the Roman
Pontiffs has been to promulgate two Codes: one for the Latin Church, the other for the
Eastern Churches. This demonstrates very clearly that they wanted to preserve that
which in God’s providence had taken place in the Church: that Church, gathered by the
one Spirit breathes, as it were, with the two lungs of East and West, and burns with the
love of Christ, having one heart, as it were, with two lungs.” v This statement of the Holy
Father, in fact, speaks volumes in regard to the relationship between the two branches of
the one Catholic Church. Naturally it also emphasizes the uniqueness of each and the
inter-relationship between the two Codes.

2. The Latin Code is divided into seven Books with 1752 canons, while the Eastern
Code is composed of 30 titles with 1546 canons, each in accord with its proper legislative
tradition. Because of the unique nature of both Churches, these Codes have their own
constitution and character which must be kept in mind while interpreting the canons of
each Code. Although the two Codes are not strictly meant to complement each other,
because they retain their own legislative individuality, it is possible to have recourse to
each other in interpreting canons which may lack clarity in legal expressions on a
common matter. There is now a growing body of literature in canonical field on these
aspects of both Codes.

2. The first book of the Latin Code is dedicated, as did the first book of the 1917
Code of Canon Law, to providing general principles which direct the interpretation and
application of law of the Latin Church. This book is of great significance as the
principles contained in it are essential to a proper understanding and application of laws
contained in other books of the Code, as well as for appropriate formulation of future
universal and particular legislation enacted by competent ecclesiastical authority.vi

2. Book I contains six preliminary canons followed by eleven titles with a total of
203 canons. Book I of the 1917 Code had only 86 canons, which means that the present
Code has 117 more canons. The increase in the number of canons in Book I of the
present Code is due to several reasons: First, several canons which were already
contained in other books of the preceding Code have been inserted into this book because
they contain principles of a general nature, such are canons on juridic persons,
ecclesiastical offices, prescription, etc. Second, some canons have been newly
introduced, such as those on general decrees, instructions, singular administrative acts,
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statutes and ordinances. Third, others have been significantly revised in light of conciliar
and post-conciliar doctrinal and legislative developments of recent years. Although there
certainly is much room for improvement in matters presented in Book I, the principles
contained in it without doubt provide us with very useful tools for understanding,
interpreting and applying ecclesiastical laws to concrete situations.

2. Thus what we have in Book I is a fairly extensive reorganization of the entire

subject matter that existed in the preceding Code. The content of our present course
includes only canons 1-95. L. Chiappetta organizes these particular canons in the
following schema:vii

A) Sources of normative canon law (objective law)

1. Sources of a legislative nature

- Written source: the law (title I)
- Non-written source: custom (title II)
- General legislative decree (title III, cann. 29-30)

2. Sources of administrative nature

a) Of a general order: general executive decrees (title III, cann. 31-33) and
instructions (title III, can. 34)
b) Of a singular order:
- Common norms (title IV, chapter I, cann. 35-47)
- Decrees and precepts (title IV, chapter II, cann. 48-58)
- Rescripts (title IV, chapter III, cann. 59-75)
- Privileges (title IV, chapter IV, cann. 76-84)
- Dispensations (title IV, chapter V, cann. 85-93)

c) Of special order
- Statutes (title V, can. 94)
- Rule of Order (title V, can. 95)

2. A good knowledge of the important principles presented in this segment of Book I

of the Code is indispensable to a proper interpretation and application of ecclesial law to
concrete cases. The object of our ministry is to extend God’s salvation to those who are
continuously entrusted to our pastoral care. If the law has a salvific dimension, then our
formation in ecclesial law should necessarily include a thorough grasp of the legal
principles that guide its interpretation and just and equitable application. This is the goal
of our present course, namely to be sufficiently acquainted with the rules of interpretation
contained in canons 1-95 and their applicability to the rest of the Code.
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PRELIMINARY CANONS

1. The introductory canons 1-6 deal with the legal realities existing at the time when
the new Code came into effect. These canons reproduce substantially the six initial
canons of the 1917 Code. After identifying its subject in the very first canon, the Code
determines the status of liturgical norms, agreements between nations or other political
societies, rights and privileges obtained from the Apostolic See, customs and universal
and particular laws in existence at the time when it came into effect in 1983.

The first six canons of the Eastern Code also provide similar norms, but they are
presented in a much simpler style. One important difference in these canons is in canon
2, which reads: “The canons of the Code, in which the ancient law of the Eastern
Churches has been mostly received or adapted, are to be assessed chiefly by that law.”
This canon, although proper to Eastern tradition, seems to parallel canon 6, §2 of the
Latin Code, which has not been reproduced in the Eastern Code.

Canon 1

The Subjects of the Code

The canons of this Code regard only the Latin Church.

Commentary

1. Implicit in the very first canon of the new Code is a profoundly theological and
canonical statement concerning the nature of the Catholic Church. It implies that the
Catholic Church, in which subsists the Church of Christ,viii is not a monolithic institution
but a communion of different autonomous Churches of the East and of the West. The
Latin Church expressly mentioned in this canon is one among many such autonomous
Churches competent to legislate for their own subjects. As the conciliar decree on the
Eastern Catholic Churches, Orientalium Ecclesiarum, states “the Catholic Church is
made up of the faithful who are organically united in the Holy Spirit by the same faith,
same sacraments and the same government. They combine into different groups, which
are held together by their hierarchy, and so form particular churches or rites.”ix The
decree continues saying that even though these churches differ somewhat among
themselves in liturgy, in ecclesiastical discipline and in spiritual tradition, they are
nonetheless all equally entrusted to the pastoral guidance of the Roman Pontiffx in whom
Christ set up a “lasting and visible source and foundation of unity both of faith and
communion.”xi The Council clearly emphasized the “equal rank” and “equal rights and
obligations” of all these churches, thus upholding the autonomy of each of them.xii Both
the Latin Code (CIC) and the new Oriental Code (CCEO) call each of these churches
“ecclesia sui iuris” or “autonomous church.”xiii

Canon 27 of the Oriental Code defines an “autonomous church” as “[a] community of the
Christian faithful, which is joined together by a hierarchy according to the norm of law
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and which is expressly or tacitly recognized as sui iuris by the supreme authority of the
Church.”xiv At the very heart of the notion of an “autonomous church” is “rite” which the
CCEO c. 28,§1 describes as “a liturgical, theological, spiritual and disciplinary heritage,
differentiated by the culture and the circumstances of the history of peoples, which is
expressed by each Church sui iuris in its own manner of living the faith.”xv Today,
besides the Latin Church, there are in the Catholic Church about 21 autonomous
churchesxvi presided over by a patriarch,xvii or a major archbishopxviii or a metropolitan or a
hierarch.xix These autonomous churches of the East arise from the Alexandrian,
Antiochene, Armenian, Chaldean and Constantinopolitan traditions.xx

1. The division of the Catholic Church into Western and Eastern is of political
origin. It followed the division of the Roman Empire made by Diocletian at the end of
the third century and confirmed by the sons of Theodocius (Arcadius in the East, 394-
408, and Honorius in the West, 395-423). The Oriental Churches were those which
belonged to the Eastern division of the Empire. All of the Oriental Churches at various
times separated themselves from the Catholic Church by heresy of schism.xxi Some of
them have remained separated from Rome and now go by the name of Eastern Orthodox
Churches or simply Orthodox Churches. But several of them have reunited with Rome
and acknowledge the supremacy of the Roman Pontiff and are, therefore, Catholic in the
full sense of the word. In the past they have been called “Uniate Churches” to signify
their reunion with Rome; but they are more properly called Eastern or Oriental Catholic
Churches. The unique feature of these churches is that they have been able to retain their
own hierarchical structure with a distinct “rite” proper to their cultural heritage.

1. In regard to the governance of each autonomous church, the decree Orientalium

Ecclesiarum declared that “the Churches of the East like those of the West have the right
and duty to govern themselves according to their own special disciplines. For these are
guaranteed by ancient tradition, and seem to be better suited to the customs of their
faithful and the good of their souls.”xxii

Canon 1 of the new Codexxiii as well as CCEO c. 1 reflect the declaration of Orientalium
Ecclesiarum. These canons clearly identify the “subjects” of each Code. The CIC 83
canon is stylistically very brief compared to the Oriental canon, and it directly mentions
the “Latin Church” as its subject. In other words, the Latin Code binds directly only the
members of the Latin Church. Nevertheless, it does not mean that the Code does not
contain prescripts which are of an interecclesial character. In fact, there are two canons
which expressly mention “oriental rite” (Catholic),xxiv and two canons which expressly
provide for “non-Catholic oriental rites.”xxv There are also a number of canons which
implicitly refer to Oriental Catholics.xxvi Moreover, the Code has several canons which,
because of their very nature, either because they proclaim matter of belief and doctrine
(e.g., canons on the teaching office, sacraments, etc.),xxvii or because they declare or
interpret divine (positive or natural) law,xxviii are applicable to Oriental Catholics.
Therefore, even though the Code expressly declares the Latin Church as its direct subject,
it does affect interecclesial relations in many instances.

1. Canon 1 of the Oriental Code is slightly different from the Latin canon. It reads:
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“The canons of this Code concern all and only the Eastern Catholic Churches, unless,
with regard to relations with the Latin Church, it is expressly established otherwise.”xxix
This canon reinforces the principle that the subjects directly bound by the Oriental Code
are the faithful of Eastern Catholic Churches and not those belonging to the Latin Church
unless it is expressly stated otherwise. Like its Latin counterpart, the Oriental Code also
has several canons which refer either explicitly or implicitly the Latin Church.xxx The
same canon also implies that non-Catholic Oriental Christians are not directly bound by
the canons of the Oriental Code. Implicit in this admission is the ecumenical principle
expressed in the conciliar decree, Unitatis redintegratio, that the Churches of the East
“have the power to govern themselves according to their disciplines.”xxxi Nevertheless,
the Oriental Code contains several canons dealing with ecumenical matters which involve
Orthodox Christians.xxxii

1. Both Codes promulgated by the same legislator are unique in their content and
style as they are intended for the governance of two distinct ecclesial communities. Even
though they flow from the same legislator, they do not constitute “sources of law” (fontes
iuris) in relationship to each other. In other words, they cannot provide “preceptive
norms” in the absence of law on particular matters in either Code, but each one can have
a “directive” or “subsidiary” role in relationship to each other in the interpretation of
canons where the mind of the legislator is not clear.xxxiii

Canon 2

The Code and the Liturgical Laws

For the most part the Code does not define the rites which must be
observed in celebrating liturgical actions. Therefore, liturgical laws in force until
now retain their force unless one of them is contrary to the canons of the Code.xxxiv

Commentary

1. In the introductory canons (2-6), the legislator acknowledges the fact that
ecclesial life is not governed only by the canons of the new Code. There are laws outside
the Code which are still efficacious, and these concern liturgical actions, concordats,
acquired rights and privileges, customs, universal laws not abrogated by this Code and
particular laws enacted by local authorities. Canon 2 deals specifically with the status of
liturgical laws.

1. Liturgical laws concern actions of a worshipping community. For the most part
these actions pertain to the spiritual dimension of the community and not so much to its
external ordering. Nevertheless, since the Church is “the community of faith, hope and
charity” and a “visible organization” through which Christ communicates truth and grace
to all people,xxxv one aspect cannot stand in contradiction to the other. Both dimensions
should reveal or manifest one reality and intrinsic harmony. Therefore, canon 2 says that
on the one hand the Code “for the most part” does not define ritesxxxvi which are to be
observed in celebrating liturgical actions, but in case of conflict between the two, the
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canons of this Code must prevail. In virtue of canon 2, all liturgical laws contained in the
liturgical books such as: Roman Missal, Roman Pontifical, Ceremonial of Bishops,
Liturgical Rites, Divine Office or Liturgy of Hours, Book of Blessings, etc., and all
documents coming from the Holy See on liturgical matters remain in force. However,
should there be conflict between liturgical laws and the canons of this Code, the Code
prevails.

When the Code speaks of “for the most part” in canon 2, it implies that there are canons
which deal with liturgical matters. For example, Book IV on The Function of Sanctifying
in the Church provides norms to be followed in the celebration of Sacraments,
Sacramentals and Other Acts of Divine Worship, and Sacred Times and Places. Article 3
of Chapter 1 on the Most Holy Eucharist expressly mentions “Rites and Ceremonies of
Eucharistic Celebration” (cann. 924-930).

1. The Second Vatican Council and several post-conciliar documents have modified
the existing liturgical books. One of the most important conciliar documents which has
been the source of intense renewal in liturgy is the Constitution on the Sacred Liturgy
Sacrosanctum Concilium, promulgated on 4 December 1963.xxxvii This document should
be regarded as the basic text (together with Lumen gentium) for the course on “Divine
Worship.”

The Sacred Congregation for Divine Worship was established on 8 May 1969 by Pope
Paul VI through the Apostolic Constitution, Sacra rituum,xxxviii replacing in effect the
Sacred Congregation of Rites which, since 1588 (established by Pope Sixtus V), had been
responsible for all liturgical legislation and for canonization of saints. On 11 July 1975,
Paul VI suppressed the Congregation for Divine Worship and the Congregation for
Sacraments as such to constitute a new Congregation: Sacred Congregation for the
Sacraments and Divine Worshipxxxix with two sections: one for the discipline of the
Sacraments and the other for divine worship. The reason for this merger stated in the
Constitution was that “a single theological class of business in which the area of liturgy,
worship, and pastoral activity is so linked with the canonical and juridical area that it is
almost impossible to distinguish one from the other.”xl This new Congregation is
responsible for preparing and approving all liturgical books/texts. The documents
emanating from this Congregation between 1963-1979 are collected in DOL. Liturgical
documents from the Congregation for Sacraments and Divine Worship usually appear in
the periodical Notitiae. Immediately following the promulgation of the 1983 Code, the
Congregation for Sacraments and Divine Worship promulgated on 12 September 1983
modifications to seventy six liturgical norms in response to this canon.xli

In his comments on this canon, J. Huels notes that canon 2 is incomplete, for not only
were the liturgical norms contrary to the code abrogated, but also abrogated were the
liturgical norms that were completely reordered by the code in keeping with canon 6,
§1,4o. Moreover, he says that canon 2 is redundant in view of the cited canon because the
latter is applicable to liturgical laws as well. But he admits that canon 2 “has a kind of
pastoral and didactic value in that it alerts the canonist and the Christian community at
large to the existence of another major and important body of ecclesiastical law apart
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from the code.”xlii

Canon 3

Respect for Agreements (Concordats)

The canons of the Code neither abrogate nor derogate from the agreements
entered into by the Apostolic See with nations or other political societies. These
agreements therefore continue in force exactly as at present, notwithstanding
contrary prescripts of this Code.xliii

Commentary

1. In its Pastoral Constitution on the Church in the Modern World, Gaudium et spes,
7 December 1965, the Second Vatican Council clearly proclaimed the principle that the
political community and the Church are autonomous and independent entities, but called
at the same time for “mutual cooperation” in favour of the welfare of all human beings in
the world. The Council claimed the Church’s right to true freedom to preach the faith, to
proclaim its teaching about society, to carry out its task among people without
hindrance.xliv According to this principle, therefore, the mission of the Church in the
world determines the basis of its relationship with any political community and,
consequently, the basis for entering into mutual “agreements” (conventiones)xlv in view of
fulfilling that mission. Canon 3 determines the status of “agreements” up to now entered
into by the Church with different countries.

1. This canon declares the Church’s intention to honour all the pacts or concordats
made with civil governments. This declaration, of course, is based on the legal axiom
“agreements must be honoured” (“pacta sunt servanda”), which is the cornerstone of
international law. The new Code, like its predecessor (in can. 3), explicitly sanctions the
“continuing force” of “agreements” entered into by the Apostolic See with nations or
some other “political society” even if they should be contrary to the prescripts of this
Code. In other words, the canons of this Code neither abrogatexlvi nor derogatexlvii from
such pacts or agreements.

In its Decree on the Pastoral Office of Bishops in the Church, Christus Dominus, 28
October 1965, the Council Fathers declared that “in order to safeguard the liberty of the
Church and the better and more effectively to promote the good of the faithful, it is the
desire of the sacred Council that for the future no rights or privileges be conceded to the
civil authorities in regard to the election, nomination or presentation to bishoprics.”xlviii
The civil authorities in question were requested to freely waive such rights and privileges
enjoyed by agreement or custom.xlix Even this plea, stated as an official policy for the
future, left those rights and privileges unaltered, thus reflecting Church’s adherence to the
obligations assumed in bilateral agreements.

1. The term “conventio” means an agreement or compact, esp. international

agreement, e.g., Geneva Convention. It can also mean an assembly of particular group of
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people, such as politicians, etc. In Roman law convention meant an agreement between
parties, a pact. It was an informal agreement of the parties, which formed the basis of a
contract, and which became a contract when the external formalities were superimposed.
In Roman law, conventions were divided into contracts and pacts. The conventions were
founded on obligation and action; all other conventions were termed “pacts.” The
“pacts” generally did not produce an actionable obligation. Actionability was
subsequently given to several pacts, whereby they received the same power and efficacy
that contracts received.l

A concordat is a compact, covenant or convention between two or more independent

governments, or an agreement made by a temporal sovereign with the pope, relative to
ecclesiastical matters.li According to this understanding the term “conventio” or
“agreement” is more generic and “concordat” would be a species of it.

This is confirmed by Chiappetta’s comments on canon 3. He notes that the Church-State

agreements or conventions can assume different forms; they can be concordats in the
strict sense of the word governing all matters concerning the relationship between the
Church and State, or they can be simple partial agreements on protocols, life-style,
particular matters such as schools, hospitals, military chaplaincy, etc. In canon 3, the
Church implies that it can enter into such agreements not only with the States but also
with “other political societies” such as the United Nations, OAS, UNESCO, etc. In such
agreements the Pope does not act as the Sovereign of the Vatican City, but as the head of
the Catholic Church, which has its supreme organ in the Holy See.lii

Some commentators extend the principle of canon 3 to include not only agreements
between Church and State, but all agreements and contracts entered into between any
physical or juridic persons in the Church among themselves or with partners outside the
Church.liii It should be noted, however, that canon 3 is concerned solely with the
conventions or agreements entered upon by the Church and State before the present Code
came into effect and not the agreements between private or public juridic persons within
or outside the Church. The latter agreements will have to be assessed in light of
principles specifically applicable to them, and, in my opinion, they certainly are not
envisaged in the prescript of canon 3.

1. Different and conflicting theories have been formulated concerning the nature of
the rights and obligations flowing from Church and State agreements. While the legal or
regalist theory upheld the absolute hegemony of the State over all social organisms, the
curialist or privilege theory overemphasized the superiority of the Church over the State
reducing the status of a concordat or agreement to a privilege granted by the Church to
the State. The most favoured theory is the contractual theory which accords concordats
the force of a bilateral pact of an international character thus acknowledging equal status
of the Church and State. For example, art. 7 of the Italian constitution of 1947 expressly
recognized the sovereignty of the Church saying: “The State and the Catholic Church are,
in their own proper sphere, independent and sovereign.”liv Of course the theoretical
controversy continues to rage since concordats or agreements are to be between two
equal parties, while the Church and State are not equal in status, the State being a
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political entity while the Church a religious or spiritual community. Such a discussion
notwithstanding, bilateral pacts which help in the Church’s mission have legitimate place
in Church-State relations. But the Church has clearly declared that it is not going to use
“bilateral pacts” to protect its freedom to fulfill its mission at any cost: “But it never
places its hopes in any privileges accorded to it by civil authority; indeed, it will give up
the exercise of certain legitimate rights whenever it becomes clear that their use will
compromise the sincerity of its witness, or whenever new circumstances call for a new
approach.”lv

In the history of the Church there have been several pacts or concordats with notable
diversity in content and form between Church and State which are traditionally Catholic
and in some instances socialist, and one with Tunisia (1964), an Islamic country.lvi

Canon 4

Respect for Acquired Rights and Privileges

Acquired rights and privileges granted to physical or juridic persons up to

this time by the Apostolic See remain intact if they are in use and have not been
revoked, unless the canons of the Code expressly revoke them.lvii

Commentary

1. Canon 4 is, in substance, an application of the general principle of non-

retroactivity of the law (can. 9) to acquired rights and to privileges granted by the
Apostolic See. In other words, the new Code leaves intact acquired rights and privileges
conceded by the Apostolic See.

Like its predecessor, the new Code also does not define an acquired right. The meaning
and content of an acquired right is to be determined by doctrine and jurisprudence. There
has been much discussion among theorists on this issue. Nevertheless there is some
consensus on certain issues related to the matter in question. A right is a subjective
faculty to do, demand or omit something, and it can be innate, legal or acquired. An
innate right flows from one’s human nature, that is, from birth, e.g., the right to life, to
the security and integrity of the person, to freedom, to work, etc. A legal right is granted
by the law, e.g., the right of every Christian faithful to bring before the Holy See a case
either contentious or penal in any grade of judgement and at any stage of litigation (can.
1417, §1), the right of lay Christian faithful to university education and to obtain
academic degrees required to fulfill their mission in the Church (can. 229, §2), the right
of clerics to have an appropriate period of annual vacation (can. 283, §2), etc.lviii

1. An acquired right, in the proper sense of the word, is a right constituted in virtue
of a juridical fact already performed and completedlix and it presupposes the following:

a) that a law, at one time in effect, though perhaps abrogated after the right was
acquired, permitted the acquisition of that right in consequence of the performance of a
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specific human act;

b) that the human act on which the acquisition of the right depended was
completed before the abrogation of the law on which the right was predicated. The law
alone, with completion of the human act, either physical (buying) or moral (conferral of a
dignity), does not create any acquired right.lx For example, a cleric legitimately acquires
the “ius in re” to an office if elected on the basis of the norms on canonical election
existing at the time even though these norms may have been subsequently modified.
Once the election has taken place according to the norms in force at the time, the cleric
obtains or acquires the right to the office. That is an acquired right.lxi

The Church traditionally maintained the custom (practice) of not withdrawing acquired rights following the legal
principle of non-retroactivity of the law, as well as for the common good of the ecclesial community. Therefore, the
purpose of the provision of canon 4 is to limit the concern of the Code with the past, especially where vested rights
or privileges are concerned. Past facts are to be judged by the law then in force. Therefore, their consequences also
must be judged according to past laws. The Code expressly provides for the retention of certain acquired rights. lxii

1. Like acquired rights, privileges conceded by the Apostolic See prior to the
promulgation of the new Code remain intact unless they are expresslylxiii withdrawn by it.

According to can. 76,§1: “A privilege is a favor given through a particular act to the
benefit of certain physical or juridic persons; it can be granted by the legislator as well as
by an executive authority to whom the legislator has granted this power.” Canon 4 deals
specifically with privileges granted by the Apostolic See. This canon stipulates that the
privileges granted by the Apostolic See (see can. 361 for the definition of Apostolic See)
and in uselxiv at the time when the new Code came into effect remain intact unless
expressly revoked by the canons of the Code. Privileges are the Church’s response to
particular situations not foreseen by law meant for the community. Therefore, the
legislator wishes to safeguard those exceptions in favour of particular person(s) whether
physical or juridic (see cann. 113-116).

1. An indult is a temporary favour granted by a competent superior. It may be a

dispensation, a permission, a faculty, etc. The difference between an indult and a
privilege is that a privilege properly so called constitutes a special objective norm (ius
singulare) and it has greater stability.lxv Thus the faculty to dispense from the law of
abstinence for five years is an indult.lxvi

1. Canon 4 stipulates the following conditions for privileges to remain intact after
the new Code became effective:

- must be conceded by the Apostolic See

- presently in use and not revoked
- not expressly revoked by the canons of the new Code.

As a consequence of these conditions: a) privileges granted by some other authority, e.g.,

the diocesan bishop, are not abrogated if they are contrary to the norms of the Code; b)
privileges acquired through prescription, if regarded as acquired rights, remain intact
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even if they should be contrary to the Code, unless they have been expressly revoked; c)
privileges gained through custom or through a law will follow the norms governing
customs (can. 5) or laws (can. 6, 2o). See canons 396, §2, 509, §1, 526, §2, for examples
of express revocation of privileges in the new Code.

XCanon 5
Respect for Customs

§1. Universal or particular customs presently in force which are contrary

to the prescripts of these canons and are reprobated by the canons of this Code are
absolutely suppressed and are not permitted to revive in the future. Other
contrary customs are also considered suppressed unless the Code expressly
provides otherwise or unless they are centenary or immemorial customs which
can be tolerated if, in the judgment of the ordinary, they cannot be removed due to
the circumstances of places and persons.

§2. Universal or particular customs beyond the law (praeter ius) which are
in force until now are preserved.lxvii

Commentary

1. Canons 23-28 of this Code provide norms on customs. Canon 5, however,

contains several criteria applicable to the suppression or conservation of customs existing
at the time when the new Code came into effect.

A custom of fact consists in the frequency of similar acts of a community.

A custom of law is the right (ius) which has emerged from such frequency with the
consent of the legislator.lxviii It may be defined more formally as “an unwritten law
introduced by an age-old-usage on the part of the people with the consent of competent
authority.”lxix

A custom is universal if it exists in the entire Church; it is particular if it exists only in a

particular segment of the Church.

A custom is according to the law (secundum ius) if it is the result of a sound

interpretation of the law (see can. 27); it is beside the law (praeter ius) when it makes up
or supplements certain deficiency in the law or introduces a way of acting in addition to
the law; it is contrary to the law (contra ius) when it is opposed to an existing prescript of
law, that is, it introduces a practice contrary to the existing law.

A custom is ordinary if it has remained in existence for thirty continuous and complete
years (can. 26); it is centenary if it has been in existence for one hundred years; and it is
immemorial when its origin is not within the memory of the people of a particular
community, but the present generation knows that it has been observed for at least thirty
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complete years from their own experience or according to the testimony of their elders.lxx

1. Canon 5 makes a threefold distinction in customs concerning their revocation by

the new Code.

First, the canon states that customs, whether universal or particular, “which are contrary
to the prescript of these canon” [of the new Code] and “reprobatedlxxi by the canons of
this Code,” are “absolutely” suppressed even if they are centenary or immemorial;
moreover, they are not permitted to revive in the future.lxxii

Second, customs “contrary to the law” which are not reprobated are also abolished except
in two instances: those customs which are expressly allowed by the Code, e.g., canons
1263 and 1279,§1; centenary or immemorial customs which, in the judgment of the
Ordinary, cannot be abolished due to circumstances of place and persons, can be
tolerated. The “Ordinary” mentioned in this canon is to be understood according to the
norm of canon 134,§1 which includes both local and personal Ordinaries. In this case,
should there be a formal decree from the Ordinary declaring toleration of the centenary or
immemorial customs? In the past there were two conflicting opinions on this matter:
some canonists demanded such a decree in the absence of which those customs would be
considered suppressed; others maintained that a factual toleration without a decree from
the Ordinary is sufficient for their continuance.lxxiii

Third, customs whether universal or particular, which are “beside the law” (praeter ius)
are preserved. The 1917 Code did not contain this provision. Therefore, the issue was
fiercely debated in canonical circles. Some argued that universal customs praeter ius not
approved by the Code were to be regarded as abolished, while particular customs would
remain in force. Others held the view that such customs existing prior to the Code were
governed by canon 30 which allowed them to continue provided that they were not
revoked by contrary customs or laws.lxxiv The new paragraph of canon 5 resolves this
controversy by expressly stating that customs praeter ius existing at the time when the
new Code came into effect are preserved. Mutatis mutandis, the same principles are to be
applied to liturgical and penal customs.lxxv

Canon 6

Abrogation of Preceding Laws

§1. When this Code takes force, the following are abrogated:

1o the Code of Canon Law promulgated in 1917;

2o other universal or particular laws contrary to the prescripts of this Code

unless other provision is expressly made for particular laws;

3o any universal or particular penal laws whatsoever issued by the

Apostolic See unless they are contained in this Code;
 13

4o other universal or particular laws regarding matter which this Code

completely reorders.

§2. Insofar as they repeat former laws, the canons of this Code must be
assessed also in accord with canonical tradition.lxxvi

Commentary

1. The Code which represents stability and good of the eccclesial community
generally retains existing legislation. Constant change is odious to its very nature. Such
was the mind of the legislator when the first systematic codification of ecclesiastical
legislation occurred in 1917. The purpose of codification was to order the existing
legislation in a systematic way and to present it in a contemporary style and clarity and
accommodate it to current needs. The systematic revision of the Code had the same
purpose, that is, to give the Church a legislation which would reflect and represent the
spirit and deliberations of the Second Vatican Council and to meet the exigencies of
modern times. Consequently, canon 6 tells us what happened to the mass of legislation
which existed prior to 27 November 1983 when the new Code came into effect and how
to interpret the revised legislation in light of the old.

1. First, canon 6,§1,1o declares that with the coming into effect of the new Code, the
1917 Code is abrogated. Since the promulgation of the 1917 Code and particularly after
the Second Vatican Council, there has been much legislation, both universal and
particular. Canon 6 declares the status of such legislation. Therefore, with the coming
into effect of the new Code, the following laws are abrogated:

a) All universal laws - left in force by the 1917 Code or promulgated subsequently
- which are contrary to the canons of the new Code (can. 6, §1,2o);

b) All particular laws (issued for a particular territory or for a determined

community, e.g., diocesan, provincial or regional laws, constitutions of institutes of
consecrated life or societies of apostolic life, etc.), contrary to the prescripts of the new
Code, with the exception of those expressly mentioned therein;lxxvii

c) Any penal law, universal or particular, enacted by the Apostolic See, even if it
is not contrary to the Code, unless it is contained in the Code (can. 6, §1,3o);

d) All other universal disciplinary laws dealing with a matter which has been
completely (ex integro) reordered in the new Code (can. 6,§1,4o), e.g., canon 844
completely reordered the discipline on sacramental sharing contained in the 1967
Ecumenical Directory; procedural laws contained in Book VII which have completely
replaced previous procedural laws, norms governing dispensations (cann. 85 ff), norms
concerning Associations of the Faithful (cann. 298 ff), laws dealing with delicts and
penalties (cann. 1311 ff).lxxviii
 14

In a response to the question concerning the status of all norms flowing from the Roman
Congregations, the Pontifical Commission for the Revision of the Code affirmed that all
instructions and laws, if any, given by the Roman Congregations, to the extent they are
contrary to the canons of the new Code, are abrogated and they should be promulgated
anew for the sake of juridic certainty.lxxix Even other laws which were given with the
express formula “until promulgation of the new Code” should also be considered
abrogated by the new Code.lxxx

1. Second, the following laws are not abrogated by the new Code:

a) Laws which declare or interpret divine law, positive or natural, which had been
in the 1917 Code but do not appear in the new Code. The very nature of such laws would
be the basis for their retention;

b) Laws, whether universal or particular, which are not contrary to the prescripts
of the new Code (can. 6,§ 1,2o);

c) Particular laws, which are contrary to the new Code but expressly retained by it
or through formulas such as “unless provided otherwise” or “unless some other provision
has been made,” etc., as in cann. 119, 164, 174, etc.;

d) Penal laws not emanating from the Apostolic See provided that they are not
contrary to the new Code (can. 6, §1,2o-3o);

e) Liturgical laws, in virtue of canon 2;

f) Laws proper to Roman Dicasteries and Tribunals of the Apostolic See (cann.
360 and 1402);

g) Particular laws contained in concordats and agreements with civil states, which
are governed by can. 3;

h) Special laws for Military Chaplains, etc. (can. 569).

1. Third, can. 6, §2 has an important rule concerning the evaluation and

interpretation of the new Code. Canon 6, 2o-4o of the 1917 Code had a more complex
formula on this point.lxxxi The present canon reduces that complex formula to one simple
principle which in effect states that canons of the new Code, to the extent they refer to old
law, should be assessed also in accord with canonical tradition.lxxxii This “canonical
tradition” has been interpreted as consisting of opinions or explanations of well-known
authors recognized as such for their prudence in judgment as well as for their proficiency
in canonical knowledge, the documents of the Holy See, etc. In this sense, the new Code
will have the 1917 Code, documents of Vatican II, post-conciliar documents, important
commentaries, etc., as its doctrinal and canonical basis for interpreting the new law (see
cann. 16-19 for principles of interpretation).
 15

The meaning of the word “referunt” used in this canon may have different dictionary
meanings. For example, in his commentary on this canon J. Huels points out that the
Latin word “refero” has several meanings, among them “repeat,” “refer to,” “reproduce,”
“represent,” “set forth anew.” A canon does not have to repeat exactly the wording of the
old law for this principle to apply, so long as the substance of the old law has been
legislated.lxxxiii

TITLE I

ECCLESIASTICAL LAWS

1. In the canonical order, as in civil order, the primary source of objective legislation
(ius) is the law. In title I of Book I, the present Code presents sixteen (16) canons
comprising numerous and complex issues.

As such canon law (ius canonicum) is not just a collection of merely ecclesiastical laws.
It contains divine laws, merely ecclesiastical laws, which would include customary laws
(cann. 23-28), and also canonized civil laws (can. 22). Divine laws are not subject to any
human authority. Those laws may be stated in positive (written) terms and authentically
interpreted by the competent authority. But they cannot be tampered with in any way by
human authority.

Some commentators have raised an interesting question concerning the applicability of

the principles contained in canons 7-22 of title I: “De legibus ecclesiasticis”
(“Ecclesiastical Laws”) to the canons of title III which deal with general decrees and
instructions. They suggest that the principles contained in canons 7-22 may be applied
also to the canons of title III.lxxxiv Thus, for example, J. Huels says that the following
canons of title I of the Code may be applied to general administrative norms: canons 9,
11-14, 15, §2, 17, and 19-22. He adds that canon 32, §2 makes explicit reference to the
applicability of canon 8.lxxxv

Chapter I of the Title XXIX of the Eastern Code has seventeen (17) canons which for the
most part substantially are comparable to those in the Latin Code on “De legibus
ecclesiasticis” (“Ecclesiastical Laws”). But three of the CCEO canons do not have
equivalent canons in the Latin Code, and these are: CCEO cc. 1492, 1493 and 1505.
Canon 1492 expresses the extent to which the faithful of the Eastern Churches are bound
by laws of the supreme authority of the Church; canon 1493 defines “common law” and
“particular law” in the Eastern canon law. The extra canon, that is, canon 1505, states the
principle that the use of masculine gender in the Code includes the feminine unless the
ius establishes differently or it is clear from the nature of the matter.

The matter of title I is divided into following headings:

- The notion and establishment of the law (can. 7);

- Promulgation and vacatio of the law (can. 8);
 16

- Non-retroactivity of the law (can. 9);

- Invalidating and disqualifying laws (can. 10);
- Passive subject of the law (can. 11);
- Universal laws (can. 12);
- Particular laws (can. 13);
- Doubts of law and of fact (can. 14);
- Ignorance and error of law (can. 15);
- Official interpretation of law (can. 16);
- Rule of interpretation (can. 17);
- Strict interpretation of law (can. 18);
- Legislative lacuna (can. 19);
- Revocation of law (can. 20);
- Doubtful revocation (can. 21);
- Canonization of civil laws (can. 22).

Canon 7

The Notion and Establishment of Law

A law is established when it is promulgated.lxxxvi

Commentary

1. The text as it appears in canon 7 of the new Code does not contain the definition
that was found in the 1980 schema.lxxxvii Therefore, it is fair to say that the legislator
intends to leave the definition of law out of the Code so that there may be a more
objective discussion on the matter among different schools of legal thought which can
contribute to a better and fairer understanding of ecclesiastical law.

The word “lex” (law) is derived, according to St. Isidore, from legere = to read, because
the Romans used to write laws on public boards which were read by the people;
according to Cicero, from eligere = to choose, because it presupposes a just choice
between actions that are to be prescribed; according to St. Thomas, from ligare = to bind,
because law obliges to act.lxxxviii The definition of law by St. Thomas is the one most
noted and commonly used. It reads: “Ordination of reason for the common good
promulgated by the one who has care of the community.”lxxxix
In the Roman world, “lex” designated conventions passed between individuals as well as
juridical precepts expressly accepted by the assembly of the citizens consulted by the
magistrate and made public by the competent authority. At the root of the word lex,
therefore, lies the idea of convention, and in this it differs from ius, originally a dictated
formula and afterwards law in a collective sense; and differs also from custom (mos,
consuetudo), which exists without the written law and is equally legitimate.

The definition of law by St. Thomas, as mentioned earlier, is an ordination, that is, a
disposition of things (affairs) for an end. It is not merely directive like a counsel which
places no obligation on the counselee, but it is imposed with authority so that it either
 17

engenders obligation, or changes the juridical status of the person whom it binds.

The purpose (finis) of law is common good. The law is given for people to live a good
and honest life. The ultimate purpose of ecclesial law is salvation of God’s people. Here
on earth, law assists people in acting in such a way that they fulfill their mission on earth
not only as individuals, but also as members of a community. The authority of the
lawgiver exists for the good of the community. That does not mean that the good of the
individual is not intended by the law. Society exists for the individual. Therefore, the
good of the individual is intended in the good of the community. Ultimately it is the
individual who benefits even from laws which may immediately restrict personal
freedom.

The author or the efficient cause of law is the one who has care of the community. For, to
order something for the good of the community is the right of the community or of the
one who stands in its stead. Therefore, it belongs to one of the community to enact laws.
The one who stands for the community has the power to oblige others to strive towards
attaining the common good.

1. The essential properties of law are that it be: possible, useful, honest, just and
stable.

a) Possible, that the matter prescribed is both physically and morally capable of
observance, i.e., not too arduous, because, if it is physically impossible, it does not allow
freedom, and hence cannot be subject to a moral law or guilt;

b) Useful, contributing to the good of the community;

c) Honest, prescribing or prohibiting what the subject can honestly perform or

omit; negatively, that which is prescribed should not be morally bad; positively, it should
be honest. That which is not honest cannot be done without offense to God. However,
for one to consider a law not honest, one must be morally certain about the iniquity
because if there is doubt, the law must be obeyed;

d) Just, that is, that which is prescribed must be intrinsically right; the law must
be reasonable, and it cannot be such unless the matter is honest and it serves just form; so
that the legislator may enact a law that is just he must observe the legal, commutative and
distributive justice; that is in keeping with the purpose of the law, the powers of the
legislator and equality in distributing burdens among subjects;

e) Stable, that is, perpetual, preserving its binding force indefinitely or at least for
a long time.xc

1. Competent authority that can legislate in the Church:

- the Roman Pontiff - for the universal Church (can. 331);

- the Roman Curia only by a special mandate of the Pope (can. 360);xci
 18

- the Synod of Bishops only in union with the Pope: for the whole Church (can.
342);
- the Ecumenical Council only in union with the Roman Pontiff: for the universal
Church (can. 336; can. 341);
- the Episcopal Conference according to general law or special mandate of Holy
See: for the territory of the conference (can. 455);
- the Provincial Council: for an ecclesiastical province (can. 445);
- the Diocesan Bishop (and those equivalent to him in law): for a diocese (cann.
134, §§1,2; 381);
- Major Superior of pontifical clerical religious institutes of consecrated life and
of pontifical clerical societies of apostolic life, Abbots Primate and Superiors of
monastic Congregations, along with their respective chapters: for their own
subjects (cann. 596, §2, 620, 627).

1. Canon 7 speaks of the institution of a law, and the word “institution,” in effect,
means the ultimate establishment of a law as an obligatory norm.xcii Ecclesiastical laws
come into existence only when they are promulgated.

1. Promulgation, from provulgare, means placing the law before the people. In other
words, it is the official intimation of the law made by the authority of the one who has
care of the community. Promulgation is not the same as diffusion of the same among the
people; because by promulgation arises objective obligation (ius normativum); whereas,
by diffusion promulgation becomes known to the subjects and subjective obligation
arises.

The necessity of promulgation of the law arises: a) from its very nature. A law is fully
constituted when it has the efficacy in binding; such efficacy cannot be had until it is
intimated to the community; b) law is a rule for common action to which the community
as such has to conform; but it cannot be a common rule unless it has been intimated to the
community in a public manner, so that it could be observed by the community.
Promulgation is necessary for all laws.

Whether promulgation is an element constitutive of the law is disputed. Regatillo

considers promulgation as a constitutive element of the law because law is a command of
the legislator directed to the community which cannot happen without its being
promulgated.xciii

Generally promulgation itself implies that the law thus made public binds the subjects
immediately. But the legislator usually states, in the act of promulgation of a law, that its
binding force is suspended for a certain period, e.g., for three months. This is to assure
that the law will not be broken simply because a large portion of the community is
ignorant of its existence.
 19

Canon 8

Manner of Promulgation of Laws

§1. Universal ecclesiastical laws are promulgated by publication in the

official commentary, Acta Apostolicae Sedis, unless another manner of
promulgation has been prescribed in particular cases. They take force only after
three months have elapsed from the date of that issue of the Acta unless they bind
immediately from the very nature of the matter, or the law itself has specifically
and expressly established a shorter or longer suspensive period (vacatio).

§2. Particular laws are promulgated in the manner determined by the

legislator and begin to oblige a month after the day of promulgation unless the
law itself establishes another time period.xciv Ҥ2. Laws issued by other legislators are
promulgated in the manner determined by these legislators and begin to oblige from the date
determined by them.”

Commentary

1. Canon 8 concerns the mode of promulgation of universal and particular

laws. Universal laws concern the entire Church, or at least certain category of
people in the entire Church, while particular laws are intended for a particular
territory, a local Church, a religious institute, etc.
The very nature of law requires that the promulgation be such that it easily reaches the entire community. Hence it
should be public so that it seems clear that it is directed to the community; and it should be authentic, so that from
the formalities of the promulgation it is evident that it proceeds from the legislator. It is not necessary, therefore, for
the law to be promulgated in every territory of the place for which it is enacted. In view of the hierarchic nature of
the Church and communication between the members and the supreme Head, it suffices that the ecclesial law be
promulgated in the seat of the Roman Pontiff or in some other place chosen by him.

Until 29 September 1908 when Pius X published the Constitution Promulgandi, the mode
of promulgating ecclesial law was varied. Prior to the thirteenth century
ecclesiastical laws were promulgated by transmission of them to all primates and
metropolitans. The collections of the decretals were promulgated by the transmission of
them to the universities. After the thirteenth century, promulgation urbi et orbi took place
at the gates of St. Peter’s, at the door of the Liberian Basilica and at
the Apostolic Chancery in Campo di Fiori. By order of the Council of Trent, the
decree Tametsi needed promulgation in every single parish. After 1870 the Holy See
commenced promulgation by the insertion of the laws in the Acta Sanctae Sedis and by
the transmission of them to the dicasteries of the Roman Curia. This de facto practice
was made de iure procedure after 1904.xcv

By the Constitution Promulgandi 1908, Pius X provided that the promulgation of all laws
emanating from the Holy See should be effected by their publication in the Acta
Apostolicae Sedis. This Constitution offered the first example in the history of
ecclesiastical law of provision in the written law itself for the form of promulgation.
 20

Previously it had been determined by usage and custom.xcvi

Canon 8 requires that universal laws, that is, laws enacted by or at the mandate of the
Pope, shall be promulgated by the publication of them in the official journal of the Holy
See, the Acta Apostolicae Sedis, unless under special circumstances, a different mode of
promulgation is prescribed. The regular period of suspension or vatatio legis is 3 months.

1. Vacatio legis is the technical term designating the time that is permitted to elapse
between the date of publication and the date on which the law takes effect. According to
canon 8, it is to be counted inclusively from the date affixed to the issue of the Acta
Apostolicae Sedis in which it is published. For example, the new Code was promulgated
on 25 January 1983 and the vacatio legis was extended to the first day of Advent of 1983,
i.e., 27 November 1983. This means, the suspension of the obligation of the new Code
extended from January 25, (inclusively) to midnight November 26, and at midnight
November 26, the suspension ceased and the binding force became effective. The period
of vacatio legis is computed according to the order in the calendar, and it is continuous
(can. 200). The legislator may prescribe a vacatio legis less than or exceeding three
months stated in canon 8. Moreover, a period of vacatio legis is not essential for
effective promulgation. It is, however, a sound policy to provide such a period in which
persons bound by the law may become adequately acquainted with their obligation.
Certain laws, e.g., doctrinal laws involving faith and morals or laws consisting of a
declaration of divine law, would forbid postponement of their binding force.xcvii

Particular laws, that is, especially the laws of legislators below the Roman Pontiff are
promulgated according to the form provided by the legislators. In the past, these laws
ordinarily took effect at once, unless they expressly provided a period of “vacatio.” But,
para 2 of canon 8 states that particular laws begin to bind one month from the day of
promulgation, unless another time limit is specified in the law itself. This prescript is
new and it will have practical importance for the laws of particular councils, conferences
of bishops, religious institutes, diocesan laws, etc.

1. Is the acceptance of the law by the community essential to its institution?

Acceptance of law means the consent of the community to a law that has been
promulgated. The general opinion is that acceptance of law by the community, either as
approval or as actual observance, is not essential to give obligatory force to an
ecclesiastical law. The legislator would not enjoy perfect jurisdiction if he were unable to
oblige his subjects by law, even against their will.

In doubt whether a law is just or unjust, it must be accepted and observed; for the
legislator is in possession and subjects are bound to observe all his laws which are not
certainly unjust and evil.

It is at times possible that in the judgment of prudent persons a universal law may appear
to be extraordinarily burdensome; in such a case recourse may be made to the supreme
legislator through the Ordinaries, requesting its withdrawal or change. A similar recourse
can be made to subordinate legislators in reference to their laws, as well as to the
 21

authority superior to them. Pending the answer to this recourse, which the subjects of the
law must be ready to accept, the application of a universal law may be considered
suspended when recourse has been made to the Holy See through the Ordinaries.xcviii

The following point must be kept in mind concerning the juridical value of acceptance or
reception of law by the community. Even though acceptance of law by the community is
not an essential element for the institution of law, the law must be received in order to be
a vital force in the community. Once received, it can easily shape its structures, it can
govern actions. A law not received is as good as nonexistent. Before its reception, actu,
the law is no more than an abstract norm which has not touched the life of the
community.xcix

Canon 9

Non-retroactivity of Laws

Laws regard the future, not the past, unless they expressly provide for the
past.c

Commentary

1. As a general rule laws affect the future, not the past, unless express mention is
made of the past. This legal principle has been recognized for a long time both in civil
and ecclesiastical legal systems; it was found in Roman Law and in the Decretals of
Gregory IX. Canon 10 of the 1917 Code repeated this principle.

Law, according to Suarez, is a rule of human action. Evidently, therefore, its application
cannot be extended to a past, or even a pending, action, because past acts no longer
require a rule. Thus, legally vested (acquired) rights are unaffected by a new law; acts
completed are judged by the law in effect at the time of its execution, and acts pending
are required to be brought to completion according to the norms of the law under which
they were begun.

The exception mentioned in the canon: “unless they expressly provide for the past,” has
limited retroactive force inasmuch as it governs the effects only of a past action and then
only so far as they lie within the jurisdiction of the legislator. Hence even a law
containing express reference to the past, if it is purely a human enactment, cannot cause
an act licitly performed in the past to be sinful.ci When the legislator enacts a law with
retroactive effect, he must clearly and expressly state his intention in the law to that
effect.

If a law is merely declaratory of a previously existing law, it is retroactive in the sense

that its effect is dated from the enactment of the previous law the sense of which it
interprets. In a sense, declaratory interpretation (can. 16,§2) is not a law, because the law
it interprets already exists. If there is doubt whether a constitutive law (as opposed to a
declaratory law) is retroactive, the solution of the doubt must exclude retroactivity.cii
 22

1. Canonical authors suggest the following principles applicable to non-retroactivity

of the law:

a) Prohibitive and preceptive laws, insofar as they oblige in conscience, cannot be

retroactive, because acts posited without culpability can never be regarded as culpable
through a precept or prohibition issued later;

b) Those laws which, if applied with retroactive effect, violate divine law cannot
be retroactive; for example, through a subsequent law, a marriage which has been validly
entered into cannot be rendered null as it would violate the law of indissolubility;

c) Interpretative laws may have retroactive effect; whether and which of these
laws indeed have such effect depends on the will of the legislator. For the present, the
prescript of canon 16,§2 must be followed concerning these interpretations;

d) Retroactivity may be attached to disqualifying laws by which capacity enjoyed

under previously existing laws can be taken away;

e) Invalidating laws by which acts valid under previously existing laws are
deprived of their validity as a basis for future conduct may at times be retroactive.
Retroactivity is, however, excluded in this case, if it would run counter to divine law as
mentioned above (indissolubility of marriage);

f) Penal laws by which punishment can be inflicted upon past transgressions of

previously existing laws, although at the time of the commission of the offences no
penalty had been established as a sanction against them, may be proper matter for
retroactivity; however, the prescript of canon 1313 should be kept in mind in this case:
Ҥ1. If a law is changed after a delict has been committed, the law more favourable to the
accused is to be applied. §2. If a later law abolishes a law or at least the penalty, the
penalty immediately ceases.” (see can. 2226 of the 1917 Code for a comparison).ciii

1. A law which expressly mentions retroactivity is the one which concerns the effect
of “radical sanation” of an invalid marriage expressed in canon 1161. As regards the
canonical effects mentioned in canon 1161, a marriage radically sanated is equivalent to a
marriage valid from the beginning. Hence, the children are not merely legitimated but
are in fact legitimate, just as if they had been born of a valid marriage, provided they
were born after the date when the parents gave the marital consent which the radical
sanation validates.
 23

Canon 10

Invalidating and Disqualifying Laws

Only those laws must be considered invalidating or disqualifying which

expressly establish that an act is null or that a person is unqualified.civ

Commentary

1. Ecclesiastical laws, which are human positive laws, may be divided into:

a) by reason of their binding force: personal and territorial as they oblige the
subjects either immediately or mediately through the territory;

b) by reason of their object: affirmative, that is preceptive, which order one to

posit a good or in itself indifferent act; and negative, that is prohibitive, which prohibit an
evil or in itself indifferent act which because of circumstances may turn harmful to the
common good; permissive, which positively allow an indifferent act to be posited or
omitted. The goal or purpose of a permissive law is to safeguard the liberty of the one
who posits or omits an act against all those who wish to object to such an act. Thus, for
example, if the Code or the Holy See positively permits something, other superiors
cannot impede it;

c) by reason of their effects: invalidating, disqualifying and penal. A law is

invalidating (irritans) when it renders an act null which, considering only the divine law,
whether natural or positive, is valid. Thus, for example, canon 153,§1 states: “The
provision of an office which by law is not vacant is by that fact invalid and is not
validated by subsequent vacancy.” A law is disqualifying (inhabilitans) when it renders a
person juridically incapable of positing an act, which in itself, considering only the divine
natural or positive law, might subsist (be valid). Disqualifying laws concern the person
acting and they deny that person the capacity to act validly, and thus only indirectly affect
the act. Examples of these are in canons 1083-1094 which set down diriment
impediments to marriage. Whereas invalidating laws directly affect the act and deprive it
of all juridical force either directly by declaring the act invalid, or indirectly by
prescribing a formality absence of which would render the act null. A penal law is one,
affirmative or negative, to which a penalty has been attached.cv

1. The prescript of canon 10 requires that legal invalidity of an act or

disqualification of a person must be expressly stated. Canon 11 of the 1917 Code had, in
addition to “expressly,” the phrase “vel acquivalenter.” This phrase does not appear in
the present canon.cvi However, the term expresse should be understood to mean explicitly
or implicitly, because a particular act may be explicitly declared as null. For example,
canon 126 states explicitly that an act placed as a result of ignorance or error concerning
an element which constitutes its substance or which amounts to a condition sine qua non
is invalid (irritus).
 24

Expressly may imply implicitly when it is expressly stated in law as a general principle
that certain elements or qualities are necessary for an act to be valid or for a person to be
qualified to posit an act. For example, canon 127 states that when the law determines that
in order to place certain acts a superior requires the consent or counsel of a college or
group of persons, he/she must obtain the consent or counsel for his/her act to be valid.
What is expressly and explicitly stated is the requirement of consent or counsel for a
superior’s act to be valid in certain circumstances determined by law. What is expressly
but implicitly stated in this prescript is that in the absence of the required elements the
superior’s act would be invalid in a particular case. There are several canons in the Code
which expressly (explicitly and implicitly) state a particular act to be invalid or a person
disqualified for determined reasons (also see canon 39).

1. In the Code there are not only acts that are “ex se” null, but also acts which are
“voidable” or “rescindable.” A “voidable” or “rescindable” act is an act per se valid, but
because of certain legal reasons it can be declared void or rescinded by a competent
authority, generally by a judge. Such “rescindable” acts are mentioned in canons 125,§2,
126, 149,§2, 166,§2, 1451,§2, 1739.cvii

1. Another important point to be kept in mind is that both invalidating and

disqualifying laws determine juridic inefficacy of acts posited against them. However,
this inefficacy differs in regard to those laws. An act placed contrary to an invalidating
law is simply null; whereas, an act placed contrary to a disqualifying law is non-existent,
because the subject lacks the capacity to act. In view of this difference, an invalid act can
be convalidated by a competent authority, but a non-existent act, strictly speaking, cannot
be sanated.cviii

1. A question has been raised by canonistscix concerning the force of “non potest,”
“nequit” found in certain laws. If formulas “non potest,” “nequit” were qualified by the
adverbs: “licite” or “valide” the question can be solved easily; if the adverb “licite” is
used, the text would manifestly express only the illiceity of an act, and if “valide” is used,
it would declare the invalidity of an act. But, when expressions “non potest,” “nequit”
are used without such qualifiers, the juridical force of a statute or prescript remains
ambiguous. In such circumstances, a fair judgment must be drawn from the matter of the
law in question and from other circumstances.cx

Canon 11

Subjects of Merely Ecclesiastical Laws

Merely ecclesiastical laws bind those who have been baptized in the
Catholic Church or received into it, possess the sufficient us of reason, and, unless
the law expressly provides otherwise, have completed seven years of age.cxi

Commentary
 25

1. Canon 11 concerns the passive subject of ecclesiastical law; a passive subject is

one who is generally considered bound by the law: a person who is the legislator’s
subject for whom the law is enacted.cxii

One of the important innovations of the new Code in comparison to the previous
legislation is expressed in this canon. To be specific, as a general rule the Church has no
intention to subject non-Catholics to is merely ecclesiastical law. This principle stood out
clearly in the Vatican II’s approach to ecumenism. Therefore, the intention of the
legislator underlying canon 11, in a sense, represents the ecumenical spirit of the Council.
We should note, however, that this conciliar spirit not withstanding, canon 1075,§2 seems
to indicate that the Church has not relinquished its right to subject even non-Catholics to
its laws. Canon 1075,§2 reads: “Only the supreme authority has the right to establish
other impediments for the baptized.” Here the phrase “for the baptized” means all the
baptized and not only Catholics. In other words the Church is in effect saying that it has
the right to enact such laws which will bind even baptized non-Catholics. But canon 11
relates itself to a practical problem and, therefore, from a factual point of view, it does not
subject all the baptized to merely ecclesiastical laws.

1. A merely ecclesiastical law is one which contains prescripts concerning a certain

matter which is not prescribed by divine law, natural or positive, but purely by
ecclesiastical authority. For example, disciplinary laws (cann. 1108-1123: on the form of
marriage) or penal laws (cann. 1311-1399) contained in the new Code. Merely
ecclesiastical law is distinguished from natural and divine positive law by reason of its
source, which, in the case of merely ecclesiastical law, is the will of the ecclesiastical
authority enacting laws, acting in harmony with the divine law, both natural and positive.
However, ecclesiastical laws that interpret or declare divine law should be classified as
divine law, and these oblige even the unbaptized or those baptized in other Christian
communities,cxiii e.g., canon 1057,§1 on the requirement of consent to enter into marriage.
Persons who have the use of reason are bound by natural and divine positive laws.
Canon 11 deals only with merely ecclesiastical laws.

1. Canon 11 stipulates three conditions which must be present in a person in order

that he/she may be bound by merely ecclesiastical laws:

a) Valid baptism in the Catholic Church or at least reception into the Catholic
Church following valid baptism in some other Christian community. By baptism one is
incorporated into the Church (can. 849) and becomes the subject of rights and obligations
(cann. 96; 204,§1). What is required is Baptism of Water, so that the unbaptised,
including catechumens (see can. 206), are not directly bound by purely ecclesiastical
laws. They may be subject to them per accidens and indirectly, for example, when they
contract marriage with a baptized person who is bound by an impediment created by a
merely ecclesiastical law.cxiv The question concerning the status of those who are
doubtfully baptised in the Catholic Church is disputed among authors. A distinction is
made between the effect of a doubtfully valid baptism in the external and internal forum:
i) in the external forum: if the doubt concerns the validity of the baptism already
conferred, the person is bound by ecclesiastical laws, because the fact is presumed to
 26

have been properly done until the contrary is proven; ii) in the internal forum, there is
obligation by divine law on the part of those concerned to solve the doubt; and as long as
doubt remains, baptism should be received sub condicione. With regard to one’s
obligation to be bound by ecclesiastical laws, in the mean time, some authors deny that
the person is bound by ecclesiastical laws because, whether the doubt concerns the
validity or the fact of conferral of the baptism, none is bound by an uncertain precept.
There are many authors hold the opposite view.cxv
b) Sufficient use of reason: Canon 11 here expresses an obvious principle of
natural law. A person may lack sufficient use of reason either habitually (e.g., severely
mentally retarded) or temporarily (e.g., state of drunkenness, seizure, etc.). Those who
habitually or temporarily lack the use of reason are not bound by merely ecclesiastical
laws. Are those who are habitually insane, but have lucid intervals, bound by merely
ecclesiastical laws? Opinions of authors differ. The more probable opinion is that those
who are habitually insane, even during their lucid intervals, are not bound by merely
ecclesiastical laws.cxvi Canon 99 states: “Whoever habitually lacks the use of reason is
considered not responsible for oneself (non sui compos) and is equated with infants.”
Infants cannot be bound by ecclesiastical laws.

c) Seventh year of age completed: Baptized persons who have not completed the
age of seven years, even though they have attained the use of reason, are not subject to
merely ecclesiastical laws. The prescript of canon 11 is positive as it states that merely
ecclesiastical laws bind those who have completed seven years of age unless the law
expressly provides otherwise. Thus a child, on the day following his/her seventh
birthday, becomes subject to merely ecclesiastical laws (age computed according to can.
202). According to canon 97,§2, a minor, before the completion of the seventh year, is
called an infant and is held to be incompetent (non sui compos); with the completion of
the seventh year one is presumed to have the use of reason. Therefore, the Church holds
that the age of reason is attained by children at seven and they are presumed to have the
use of reason thereafter.

1. The phrase “unless the law expressly provides otherwise,” applicable to the last
condition, makes an exception to the general rule. Thus, there are exceptions expressly
mentioned in the Code which exclude, even those who have attained the age of
discretion, from the obligation of certain laws (see cann. 1252, 1323).

Are children who have made their first communion before the age of seven bound by the
precepts of annual communion (can. 920) and penance (can. 989)? Are these precepts
merely ecclesiastical or are they also partly divine? If they are merely ecclesiastical,
those who have not yet completed seven years of age will not be bound by the said
obligation. This will be in conformity with canon 11. In the regime of the 1917 Code,
children who had not completed the seventh year were bound by the obligations of
paschal communion (see can. 859,§1) and annual confession (see can. 906). According
to Cappello, the exceptive clause, “unless the law expressly provides otherwise,” would
refer only to merely ecclesiastical laws.

1. The 1980 Draft had two more paragraphs (and the 1982 Draft had only 2) in
 27

canon 11. Paragraph 2 stated that “the baptized who are members of Churches or
ecclesial communities separated from the Catholic Church, are not directly obliged by
those same laws.” Paragraph 3 stated that “without prejudice to §2, those same laws
oblige those who have defected from the Catholic Church, unless otherwise expressly
provided by law.”

The promulgated text has dropped both paragraphs. Paragraph 2 may be said to be
contained implicitly in paragraph 1. The two paragraphs (2 and 3) of the 1980 Draft met
with criticism. For example, Cardinal Suenens objected strongly to the wording of “those
same laws oblige those who have defected from the Catholic Church, unless otherwise
expressly provided by law.” This prescript, according to Suenens, would be contrary to
the spirit of the Gospel. With regard to those who by a formal act leave the Church, such
a norm could be regarded as a means of coercion which does not reflect the spirit of the
Gospel. Therefore, he suggested that paragraph 3 be suppressed and a nisi clause (“nisi
actu formali [et publico] ab eadem defecerint”) be added to paragraph 1.cxvii Even
though this suggestion was rejected by the Code Commission, during the final review of
the draft, the legislator decided to leave out both paragraphs in the promulgated text.

1. Elimination of these two paragraphs means that baptized non-Catholics are no

longer directly subject to purely ecclesiastical laws, and baptized Catholics and those who
were received into the Catholic Church even if they leave the Church, are bound by
merely ecclesiastical laws unless they are expressly exempted by law as in canon 1086,§1
(impediment of disparity of worship) and canon 1117 (form of marriage). From a
theological point of view, the retention of the prescript binding even those who have
defected from the Catholic Church to merely ecclesiastical laws, implies that the
obligations arising from Catholic baptism or incorporation are perpetual; they persist, and
although one may “leave” the Church, the Church does not thereby relieve one of the
obligations assumed earlier. Can this theology be reconciled with the theology of
freedom of conscience? This question needs deeper theological reflection.

Canon 12

Extent of Universal Laws

§1. Universal laws bind everywhere all those for whom they were issued.

§2. All who are actually present in a certain territory, however, are
exempted from universal laws which are not in force in that territory.

§3. Laws established for a particular territory bind those for whom they
were issued as well as those who have a domicile or quasi-domicile there and who
at the same time are actually residing there, without prejudice to the prescript of
can. 13.cxviii
 28

Commentary

1. Canon 13 of the 1917 Code spoke of “general” and “particular” laws. But the
present canon 12 distinguishes between “universal” and “particular,” and “general” and
“special” laws. This distinction has juridical consequences.

A law is called “universal” by reason of territory within which it exerts its force. In other
words, a universal ecclesiastical law is one enacted for the entire Church, or at least for
certain classes of people in the entire Church, e.g., clerics, religious.

A “particular” law is one enacted for a certain or specific territory, e.g., a diocese, a
region, a particular country, or for a specific category of persons, e.g., the constitutions of
a particular religious order.

Universal laws are distinguished between “general” and “special,” and these are so called
by reason of persons whom they affect. “General”laws concern all the faithful, while
“special” laws affect only a certain category of people in the Church, e.g., laity, clerics,
religious, married, etc.

1. According to canon 12,§1, universal laws bind everywhere in the world all those
for whom they were enacted. Thus, most of the canons of the new Code bind all baptized
Catholics and those received into it, and everywhere similarly; certain laws bind certain
category of persons everywhere, e.g., laws for clerics.

Paragraph 2 of canon 12 envisages the possibility of exempting a particular territory from

a prescript of universal law. In effect it states that if a certain territory has been exempted
from a universal law, say Canada has been exempt from canon 1249 (fast and
abstinence), all those who are actually within the Canadian territory are exempt from the
observance of the law.

1. The following conditions are necessary in order for a person to be subject to laws
enacted for a particular territory or to a particular group in the territory:

i) must belong to the category of persons for whom the law is given;
ii) must have a domicile or quasi-domicile (see can. 102) in the territory
concerned;
iii) must be actually in the place, with due regard to the prescript of canon 13.

Sometimes, however, even persons absent from the territory are bound by the particular
laws in effect in that territory when their transgression would be harmful there. If the
transgression is harmful in one’s own territory, one who is physically absent is considered
juridically present, that is, by fiction of law.cxix

1. Is a legislator bound by his own laws?

a) If the law is the work of a legislator who is sovereign in his own competence,
 29

e.g., the Pope in the entire Church, or the bishop in his diocese, it seems that the legislator
is not directly bound to observe his own laws. However, he may well be bound by reason
of his being the member of the community although as the head, as well as by reason of
the common good, which requires even the legislator to respect good order in the
community.

b) If the law is the work of a council (ecumenical, regional, provincial), where

each member of the assembly exercises one’s legislative power, but the law is the fruit of
the entire council, each member is subject to it. However, some argue that the Roman
Pontiff is exempt from this rule.cxx But we believe that the principles of honesty,
integrity, justice and natural equity cannot exempt even the legislator from abiding by his
own laws.

Canon 13

Extent of Particular Laws

§1. Particular laws are not presumed to be personal but territorial unless it
is otherwise evident.

§2. Travelers are not bound:

1o by particular laws of their own territory as long as they are absent from
it unless either the transgression of those laws causes harm in their own territory
or the laws are personal;

2o by the laws of the territory in which they are present, with the exception
of those laws which provide for public order, which determine the formalities of
acts, or which regard immovable goods located in the territory.

§3. Transients are bound by both universal and particular laws which are
in force in the place where they are present.cxxi

Commentary

1. Paragraph 1 of canon 13 is new. Universal laws are presumed to be personal.

Whereas canon 13,§1 expresses the principle that particular laws are presumed to be
territorial and not personal unless the contrary is established.

A law is “personal” when it affects the person of the subject everywhere, even outside
one’s own territory. On the other hand, a law is “territorial” if it exerts its force only
within the limits of the territory for which it is enacted. The territorial efficacy may be
distinguished between “relative” and “complete” or “absolute.” “Relative” territoriality
means that the law affects the subjects of the territory only when they are there and does
not affect travellers in the territory; while, “complete” or “absolute” territoriality exists
when the law affects also the travellers while they are in the territory.
 30

1. The legal principle that “laws are personal” was basic to Roman Law. The same
principle gained prevalence in the early middle ages in countries of Europe under the
barbarian rule. This situation changed with feudalism when the importance of the land
substituted the principle of territoriality to that of personality.

In Canon Law, the question was not treated technically before the decretalists.
Decretalists, while commenting on certain texts of the Decretum, stated that travellers
were bound by the laws of the territory in which they found themselves. At the beginning
of the XIIIth century most canonists taught that strangers were only exceptionally subject
to the laws of the territory in which they found themselves.

The canonists of the classical period generally taught that the law was naturally
territorial, since it proceeds from jurisdiction. Since jurisdiction generally concerns a
territory, it is limited to that territory; therefore, a law which is enacted for a territory,
cannot oblige beyond that territory, because it would exceed jurisdiction. Exceptions to
this principle, for example, when damage is caused in the territory of the subject by the
subject while he/she is outside, were explained by a “fictio iuris.”

The principle of territoriality of law was questioned during the XIXth and at the
beginning of the XXth century. Canonists argued that the nature of law as presented by
St. Thomas did not include the concept of territoriality. This position influenced the 1917
Code which, in canon 8,§2 added “unless it is otherwise evident” to the presumption of
territoriality of laws. The Code Commission, while revising canon 14 of the 1917 Code
felt that the principle of territoriality should be applied to “particular laws,” because from
a historical viewpoint the question of territoriality had been raised only in regard to
particular laws.cxxii Since canon 8,§2 has been eliminated in the new Code the
presumption of territoriality is applicable only with regard to particular laws.cxxiii

1. According to canon 13,§1, therefore, a particular law is presumed to be territorial.

Thus, for example, a bishop through a general decree prohibits his priests to gamble.
This particular law is presumed to have force only within the boundaries of that bishop’s
diocese. If the bishop wants to extend his prohibition binding on his priests beyond the
limits of his diocese, he must make it explicit in his decree. Strictly personal laws, such
as the constitution of a particular religious institute, are particular and bind the subjects
everywhere. The personal (not territorial) nature of such particular laws is evident in the
content of the constitutions of religious institutes or societies of apostolic life.

Thus, particular laws bind only persons for whom they are given when they are actually
in the territory of their domicile or quasi-domicile. Two exceptions to this rule are: A
traveller (peregrinus) and transient (vagus).

1. A traveller (peregrinus) is a person who has a domicile or quasi-domicile in a

definite place, but is now actually absent from it (see can. 100).

According to canon 13, §2, a traveller (peregrinus) is bound:

 31

a) by the particulars laws of his own territory, even during his absence from the
territory, if the violation of those laws cause harm in his own territory. For example,
unlawful actions harmful to discipline in one’s own territory are transgressions of the law
on residence and of the law requiring presence at a diocesan synod;cxxiv

b) by the particulars laws which are at the same time personal, that is, they follow
the subject even when he/she is travelling. Thus, a diocesan law forbidding priests from
attending horse races even while they are outside the diocese; personal laws binding on
others must be clearly declared to be such by the legislator; if his intention is not clear,
the law should be considered to be merely territorial;cxxv

c) by the particulars laws of the territory in which one is sojourning when these
laws concern the public good, e.g., the exercise of jurisdiction, laws restricting clerics’
involvement in business unbecoming their religious state, or determine certain legal
formalities, e.g., civil law requirements for contracts and wills, in trials, etc., or
regulations concerning immovable property, such as land, buildings, etc. This last
provision is new in this canon;

d) by the general laws, though these laws are not enforced in one’s own territory;
but one is not bound by general laws that are not binding in the place where one sojourns.
Thus a traveller must assist at Mass on the Feast of the Assumption if he/she is actually in
a place in which the feast is observed according to the general law, even though in his/her
home diocese the same feast does not involve this obligation. But if he/she travels
through a diocese in which, by special indult, the feast does not involve the obligation,
he/she enjoys the exemption even though in his/her home diocese he/she would not.cxxvi

1. A transient (vagus) differs from the traveller (peregrinus) in this that, while the
latter (traveler) has a domicile or quasi-domicile but is only absent from it, the former
(transient) has neither. In other words, a transient has no domicile or quasi-domicile
anywhere. According to canon 13,§3, a transient is bound by both universal laws and
particular laws which are in force in the place where he/she is present. Lest they should
wander around without any laws, transients have as their proper pastor or Ordinary, the
pastor or the Ordinary of the place where they actually are (can. 107, §2). They enjoy the
same rights and are bound by the same obligations as if they had a domicile there. In
other words, the criterion of complete or absolute territoriality is applicable to them.
Once they leave the particular place they are no longer bound by the particular laws
governing the people of that place.cxxvii
 32

Canon 14

Doubt About Law and About Fact

Laws, even invalidating and disqualifying ones, do not oblige when there
is a doubt about the law. When there is a doubt about a fact, however, ordinaries
can dispense from laws provided that, if it concerns a reserved dispensation, the
authority to whom it is reserved usually grants it.cxxviii

Commentary

1. Canon 14 contains important principles applicable when there is doubt concerning

a law. Doubt in the strict sense is “a state of mind in which the intellect suspends certain
judgment about some proposition because of the fear of error,” and doubt in the broad
sense is “that condition in which the mind lacks certitude and vacillates between two
contradictory decisions.”cxxix

Doubt is said to be positive when there are probable reasons for supporting one or both
decisions; it is negative when the mind lacks or has very weak reasons supporting either
of the decisions.

Doubt may be prudent or imprudent, probable or improbable inasmuch as the doubt is

based on solid or weak foundation.

Doubt may affect the law (doubt of law = dubium iuris) with respect to its existence,
essential elements, binding force, sense, its promulgation, extension and cessation.

Doubt may affect the application of the law to a fact (doubt of fact = dubium facti), i.e.,
when it is uncertain whether a fact or its circumstances possess all the requisite elements
to bring it within the compass of the law; e.g., a doubt whether Peter has completed his
18th year to be bound by the law of fast (can. 1252).

Doubt may be objective when it is founded on the obscurity of a law or a fact; subjective,
if it is founded on a defect of one who doubts.

Canon 14 deals with positive, probable, objective doubt of law or of fact; it does not deal
with negative and subjective doubts which amount to ignorance.

All laws generate obligation in conscience; besides, some produce other juridical effects,
such as disqualification of a person, or nullity of an action.

1. The effects of doubt on laws:

a) In a positive and probable doubt of law, ecclesiastical laws are not binding,
either as regards moral or legal obligation, according to the principle: “a doubtful law is
 33

not a law at all,” or as regards the validity of acts; thus, even invalidating and
incapacitating laws are not binding if there is a positive doubt of law; mere ignorance is
not the basis for claiming the non-binding character of a law.

b) What happens when there is doubt concerning whether a prescript of the new
Code disagrees with the prescript of the old Code? Canon 6, 4o of the 1917 Code stated
that in such a situation the old prescript should be followed. This stipulation is not
repeated in canon 6 of the new Code. However, Can. 6,§2 states that to the extent that
the canons of the new Code reproduce the former law, they are to be assessed in the light
of canonical tradition.

c) What if there is doubt concerning the revocation of a law? Regatillo says that
this case should not be excepted from the general principle “a doubtful law is not a law at
all.” Even though canon 21 states that, in doubt, the revocation of a previous law is not
presumed, it may have to be understood as: a new law is not the only sufficient argument
for revocation, but there may be other serious indications which may engender doubt of
law concerning its revocation; then the previous law loses its force.cxxx

1. In the case of a doubt of fact, the law exists and retains its objective force. But
does it generate subjective obligation in such a case? No, if one follows the principle of
probabilism, unless it is necessary to obtain a certain effect which does not depend on
conscience, e.g., validity or marriage. Does it produce other juridic effects? That
depends on the objective existence or non-existence of the fact concerning which there is
doubt; for these do not depend on the conscience. Thus, a doubt of fact does not sanate
the nullity of an act.cxxxi In the case of a doubt of fact, therefore, an Ordinary has the
power to dispense from the law provided the dispensation is one which the Holy See
customarily grants in the same circumstance (can. 87, §2).

1. The “Ordinary” mentioned in canon 14 includes both local and personal

Ordinaries as mentioned in canons 134, 368, 381. The faculty to dispense from a law in
case of doubt of fact is granted to an “Ordinary” ad cautelam, that is, for the peace of
conscience and to obtain juridic effects with certainty. But the dispensation is not
absolutely necessary except to avoid perchance sanction in the external forum or the
danger of nullity of an act, and to secure future licit exercise of sacred orders in case of
doubtful irregularity. Because, once the Ordinary grants the dispensation, the juridic
effect is preserved even though later on a certain impediment or irregularity may be
discovered. Hence, where it is a question of only liceity of an act, dispensation is not
necessary because such a law does not bind in conscience (theory of probabilism).cxxxii

The Ordinary who is going to dispense from the obligation of a law because of doubt of
fact (can. 14), must first verify whether the case in question entails a reserved
dispensation and, if so, whether the Holy See usually dispenses. There are a number of
reserved dispensations in the new Code, for example matrimonial impediments arising
from sacred orders (diaconate, priesthood, episcopate) or from a public perpetual vow of
chastity in a pontifical religious institute (can. 1078, §2,1o).
 34

XCanon 15

Ignorance or Error About Laws

§1. Ignorance or error about invalidating or disqualifying laws does not

impede their effect unless it is expressly established otherwise.

§2. Ignorance or error about a law, a penalty, a fact concerning oneself, or

a notorious fact concerning another is not presumed; it is presumed about a fact
concerning another which is not notorious until the contrary is proven.cxxxiii

Commentary

1. Every law of its very nature imposes on its subjects an obligation of knowing it,
otherwise its observance would be impossible and the legislation itself rendered useless.
Ignorance, whose influence and effect on laws is dealt with in canon 15, is diametrically
opposed to such a knowledge of the law.

Ignorance is lack of due knowledge or information. Ignorance is, at times, considered

equivalent of: a) error, which is false judgment concerning a thing; b) forgetfulness, that
is, failure of memory concerning a thing otherwise known; c) inadvertance, that is failure
to reflect while acting, in other words, actual ignorance.cxxxiv These concepts, however,
are not the same as ignorance.

1. Ignorance may be:

a) In relation to its object: - ignorance of law and of fact (similar to doubt);

ignorance of fact may concern personal fact or facts concerning others; a fact may be
occult, public, notorious, inasmuch as it is secret or divulged; or is so known that it
cannot be hidden; and ignorance of penalty.

b) In relation to its subject: - invincible, if it cannot be dispelled either physically

(because the doubt does not arise or there is lack of mental ability to do so), or morally
(because even after using the diligence the subject is capable of, under the circumstance,
ignorance cannot be dispelled).

- vincible, if it could be removed by the exercise of the usual means of acquiring

knowledge; vincible ignorance may be culpable or inculpable. It is culpable, when it
results from a morally imputable lack of knowledge, which is both possible and
necessary, when one foresees at least vaguely that he/she is placing him/herself in danger
of violating the law; it is inculpable if it is not subjectively or morally imputable for
whatever reason.

- vincible, culpable ignorance is further distinguished into: simple, if insufficient

diligence has been used in dispelling ignorance; crass or supine, if no diligence has been
used; affected, if ignorance is directly desired in order to act freely, or to act in contempt
 35

of the law or the lawgiver.cxxxv

1. According to canon 15, §1, ignorance, whatever kind it may be, or error does not
excuse from the effects of invalidating and disqualifying laws, unless the law expressly
states otherwise. Even though ignorance may excuse in conscience from culpability, it
cannot excuse from the juridic effect of an invalid act, because this effect does not
depend on subjective conscience; it relates to the common good of the subjects of the law.
Thus, for example, someone ignorant, even inculpably, of a diriment impediment (e.g.,
first cousins) contracts marriage; he/she contracts invalidly, even though he/she does not
sin as there is no moral fault involved.

1. Two canons, which deal primarily with acts of jurisdiction with effects in the
internal forum, are to be noted here: canon 142,§2 states that an act of delegated power
exercised for the internal forum only, which is inadvertently performed after the time
limit of the delegation, is valid. Thus a priest, who has received the faculty to hear
confessions for a fixed number of days, inadvertently hears a confession the day
following the expiry of his faculty absolves validly in virtue of canon 142,§2.

Similarly, canon 144 states that, in common error, whether of fact or of law, the Church
supplies executive power of governance for both the external and the internal forum.
This is applicable also to faculties mentioned in canons 883 (confirmation), 966
(penance) and 1111, §1 (assistance at marriage).

1. With regard to penal laws, the influence of ignorance is stated in canons 1323, 2o,
1324, 9o, and 1325. According to canon 1323, 2o if a person was, without fault, ignorant
of violating the law or precept, he/she is not liable to a penalty which may be attached to
the violation of the law or precept; according to canon 1324, 9o, one who violates a law is
not exempt from the penalty, but the penalty or penance should be diminished if through
no personal fault the person was unaware (ignorant) that a penalty was attached to the
law or precept; according to canon 1325, ignorance which is crass or supine or affected
can never be taken into account when applying the provisions of canons 1323 and 1324.

1. Canon 15, §2 lays down some important principles concerning the presumptions
with regard to ignorance or error:

a) ignorance or error concerning a law or a penalty is not presumed. (A

presumption is a probable conjecture about something which is uncertain; see can. 1584).
Therefore, one who claims ignorance must prove it in the external forum. It is more
easily admitted by the legislator in the case of minors or the uneducated, or when it
relates to matters far removed from the common understanding.cxxxvi

b) ignorance or error concerning one’s own deeds is not presumed. Obviously no

one should be supposed to be ignorant of what he/she has done, unless there is question
of events of remote past or of negligible importance, or if he/she is a person who is
involved in multiple commitments or is disturbed in mind, etc.
 36

c) ignorance or error concerning a notorious deed of another is not presumed. The

term “notorious” as used in this context, means something that is publicly known.
Ulpianus said: “What must be said when everybody in the city knows what he alone is
ignorant of?”cxxxvii In such circumstances, the knowledge of notorious facts is presumed.

d) ignorance or error is presumed concerning non-notorious deeds of another,

until the contrary is proved. This principle derives from Regulae Iuris 13, in VIo:
“Ignorance of fact not of law excuses.” Because such facts may be so many and so
different and obscure, therefore, they could escape even the knowledgeable.

Canon 16

Authentic Interpretation of Laws

§1. The legislator authentically interprets laws as does the one to whom
the same legislator has entrusted the power of authentically interpreting.

§2. An authentic interpretation put forth in the form of law has the same
force as the law itself and must be promulgated. If it only declares the words of
the law which are certain in themselves, it is retroactive; if it restricts or extends
the law, or it explains a doubtful law, it is not retroactive.

§3. An interpretation in the form of a judicial sentence or of an

administrative act in a particular matter, however, does not have the force of law
and only binds the persons for whom and affects the matters for which it was
given.cxxxviii

Commentary

1. The interpretation of a law is the explanation of the genuine and exact meaning of
the law. Strictly speaking, it is the explanation of the doubtful or obscure meaning
contained in the law from the beginning, that is, according to the mind of the legislator. It
differs from a declaration, which is the verbal exposition of a law which is clear in itself.
The necessity for the interpretation of law arises from the fact that a human legislator
cannot express everything in clear terms.

1. Division of interpretation:

a) By reason of its author:

i) authentic, if it emanates from public authority, e.g., the legislator, his

successor, etc., with obligatory force; authentic interpretation may take the form
of a general law (general interpretation) if it is prescribed to all the subjects by
law or custom, or of a particular application of the law (particular interpretation)
through a rescript (administrative interpretation) or a judicial sentence (judicial or
forensic interpretation).
 37

ii) directive, if it does not emanate from public authority and does not per
se enjoy obligatory force; it may proceed from customs of fact (interpretatio
usualis), or from the opinions of renowned authors who are experts in law
(interpretatio doctrinalis).

b) By reason of its effect:

i) declarative, if it merely declares the meaning of the words of a law

which are clear in themselves, and it has retroactive effect.

ii) explanatory, if it explains a doubtful law, perhaps because of its

wording and modifies the obligatory character of the law.cxxxix

iii) extensive interpretation broadens the law by extending it to other cases,

things, places, persons not contained in it.cxl

iv) restrictive interpretation restricts (narrows down) the law not only in
relation to its proper meaning but also in relation to its true meaning.cxli
Therefore, extensive and restrictive interpretations will be new laws.

c) By reason of the mode of interpretation:

i) broad: as words which in themselves can have several meanings, takes

on the broader meaning;

ii) strict: the words take on a more restrictive sense.

Thus, the principle that “favorable” things are to be interpreted broadly, but in “odious”
situations the interpretation is to be strict.

d) By reason of the auxiliary instruments used in forming the interpretation:cxlii

i) grammatical (literal, etymological), if it proceeds from an analysis of

the mere meaning of the terms of the law as either commonly accepted or as
founded on their historical roots;

ii) logical, if it proceeds from the study of the text and context of the law
and from the principles of law in general;

iii) historical, if it proceeds from an investigation of underlying historical

sources and environment of the law;

iv) systematic and analogous, if it proceeds from a comparison of parallel

or related legislation, from an examination of the reference of a law to an entire
juridic system, and from an inquiry into the relation of a law to similar laws, to
 38

contrary laws, or to jurisprudence in general.

1. Authentic interpretation of law may be given by the legislator or his successor,

and by those to whom the legislator or his successor has granted the power of
interpretation. This principle is derived from the juridic axiom: “Whence the law
proceeds, the interpretation also proceeds.”cxliii A Superior may authentically interpret the
laws of a subordinate legislator. Thus the pope and an ecumenical council enjoy
authority to issue an authentic interpretation of any ecclesiastical law. Moreover, the
Holy Father may mandate any Curial offices or any person to give an authentic
interpretation of ecclesiastical law. The Congregations, within the limits of their
mandate, and the Pontifical Council for the Interpretation of the Legislative Texts, may
issue, in the form of law, authentic interpretation of universal law. The Pontifical Council
is competent to issue even authentic extensive and restrictive interpretation, though
according to several authors, it does not enjoy legislative power.cxliv

1. An authentic interpretation of law requires promulgation. If there is question of

authentic interpretation of universal law, promulgation is done in the Acta Apostolicae
Sedis; interpretation of diocesan law may be conveyed through a diocesan paper or
pastoral letter.

1. If an authentic interpretation is a mere declaration of the meaning of the words of

the law, which are already certain in themselves, it has retroactive force; if the
interpretation is restrictive, or extensive, it is not retroactive.

An authentic interpretation given by way of a judicial decision (e.g., a sentence of the

Rota, of the Signatura, of a local tribunal) or by an administrative act (e.g., solution of a
controversial issue in an administrative procedure) does not have the force of law, but
binds only the persons to whom it is given and in matters affected by it. Nevertheless,
judicial sentences and singular administrative acts (decrees, precepts and rescripts)
emanating from the Roman Curia, although binding only the persons to whom they are
given, provide a safe rule of action for all the faithful who find themselves in a similar
situation. Several sentences or rescripts of this kind, reiterating the same interpretation of
the law, become authentic jurisprudence, against which it would be audacious to act.cxlv

1. Doctrinal interpretation (private) given by renowned authors has only that weight
attached to the reasons on which they are based. They have special significance when
they are almost unanimous, and especially if they are unanimous and consistent over an
extended period of time since in the latter case they would be practically obligatory.cxlvi

Customary interpretation, which is based on the customs of the people, obtains

obligatory force when the conditions necessary for this have been fulfilled, one of which
is that it must be according to law (secundum ius).cxlvii
 39

Canon 17

Proper Understanding of Ecclesiastical Laws

Ecclesiastical laws must be understood in accord with the proper meaning

of the words considered in their text and context. If the meaning remains doubtful
and obscure, recourse must be made to parallel places, if there are such, to the
purpose and circumstances of the law, and to the mind of the legislator.cxlviii

Commentary

1. In canon 17 and the two following canons, the legislator supplies rules of
interpretation necessary to explain the law correctly. These rules are helpful in doctrinal
interpretation of the canons.

The first rule stated in canon 17 is that the ecclesiastical law must be understood
according to the proper meaning of the words considered in their text and context.
“Words” in this canon refer to all the words of the sentences of which the law consists,
including nouns, pronouns, verbs, adverbs, conjunctions, etc., which the legislator has
used to express his mind in the law.

The proper meaning of words is that which is commonly attributed to them, although this
meaning may be technical in a specific field. Proper meaning, according to which the
words of the law are to be accepted, may be: juridical, customary, or etymological. The
most important of these is juridical meaning and then customary, because the legislator is
not expected to use words in an arbitrary or casual manner, but according to the common
way of communicating that is either juridical or popular. Generally speaking, a purely
etymological analysis may not be appropriate for interpretation, since in the course of
time a word may have often lost its original philological meaning, or the latter has, at
least been modified, or extended.cxlix

1. In the Code, there are several words which have juridical meaning. For example,
domicile, quasi-domicile (can. 102), major, minor (can. 97), incola (resident), advena
(stranger), peregrinus (traveller), vagus (wanderer) (can. 100), affinity (can. 109),
juridical person (can. 114), power of governance (can. 129), an ecclesiastical office (can.
145), Ordinary (can. 134), Holy See (can. 361), etc., these and other terms must be
understood in their technical (canonical) connotation. If the words have no special
juridical meaning, they retain their ordinary meaning, that is, the meaning which was in
use when the law was promulgated.

Moreover, even the technical terms should not be considered and studied singly and
separately; they must be analyzed within their entire text and context. The “text” refers to
the mere verbal exposition of the law, its sentence structure. Thus “a word must be
understood in its entire text” means that it be studied within the specific place in the
sentence where it is found. The “context” is the logical arrangement of the sentence,
 40

phrase, chapter, etc. A textual interpretation may be literally correct, but may not be so
contextually. That is, according to canon 17, attention is to be paid to the text as well as
to the context. This principle is in accord with that of Roman Law, which declared
improper a judgment or an opinion based on a clause of the law without reference to its
entirety.cl Therefore, in interpreting ecclesiastical law, one should read integrally the
words and phrases comparing also the source canons (e.g., leading canons which define
or describe a particular topic, such as a sacrament), the various titles in reference to the
order and connection which they have to one another. Special attention shall also be
given to punctuation.cli

1. If words, after considering in their text and context, still remain obscure or
doubtful, recourse must be had to parallel passages, to the purpose and circumstances of
the law, and to the mind of the legislator.

a) Parallel places (passages): Canon 18 of the 1917 Code said: “parallel places in
the Code.” The present canon does not limit parallel passages to those found in the Code;
the intention of the lawgiver seems to indicate (in this omission) that words of the canons
of the Code may have a meaning which is found in documents outside the Code, e.g., in
the documents of Vatican II, or in other documents which have emanated from the offices
of the Roman Curia and even in the new Eastern Code.

This and other aids of interpretation of ecclesiastical laws imply an organic unity of the
legal system based on the nature of the Church, the fundamental source of ecclesial law.
Most canons, therefore, have certain degree of affinity with each other; but certain canons
may deal with a subject matter more expressly than with others. The new Code has
several new sources on which its canons have been based. Therefore, one may have to
fall back on the relevant portions of those sources in order to understand the meaning of
certain words or phrases which are obscure or doubtful in the canon of the Code. It is
possible that there is apparent contradiction between parallel texts. Per se no canon can
contradict another, because if two canons are really opposed to each other both will have
no efficacy. Apparent contradiction may arise owing to the fact that one of the texts
involves a common ordinance and the other an exception: or that one is a statement of a
general law, the other of a particular law,clii or at times due to unintentional oversight in
coordinating the texts of canons. Such apparently contradictory texts should be
reconciled with legal wisdom.

b) The purpose of the law: the purpose of the law is the reason or motive or value
of the law. If the purpose of the law is certain and adequate, it should not be neglected
when the meaning of the law is otherwise doubtful. For example, the value or purpose of
the law on the impediment of disparity of worship (can. 1086), is to prevent Catholics
from marrying someone who might pose danger to their faith and the Catholic upbringing
of their children.

It must be remembered here, however, that the purpose of the law is not
something one thinks should have been. The assessment of the purpose must be objective
and prudent if the legislator himself has not explicitly stated it.
 41

c) Circumstances of the law: These are extrinsic and accessory factors which
accompany and surround the law: the facts that influenced the legislator to enact it, e.g.,
the occasion influencing the enactment of the law. Laws generally do not emerge out of
the blue; they are the response to some concrete historic facts, social conditions, such as
limiting certain excesses, eradication of abuses, reform of existing discipline, etc.; among
the circumstances to be included are: the time and place of origin, namely existing
discipline, teaching, opinions, praxis, customs of the place in which the law has emerged;
preliminary discussions during the committee or legislative meetings; previous drafts and
other preparatory acts involved in the formulation of the law; practical execution, that is,
observances and customs that were introduced immediately after the promulgation of the
law. Thus it seems clear that sometimes an examination of the circumstances can help in
the proper understanding of a doubtful law.cliii

d) Recourse to the mind of the legislator: If the use of the above mentioned rules
does not resolve the obscurity or doubt, one must have recourse to the mind of the
legislator. The expression “mind of the legislator” is not accepted by authors in a
universal sense. Insofar as the text of canon 17 provides a special rule of interpretation
distinct from the previous ones, the “mind of the legislator” may be understood as the
“general disposition” by which the legislator was inspired and directed to formulate the
law.cliv

1. The search for the intention or disposition of the legislator behind a particular law
is not an easy task. It demands a knowledge of the legislation that is extensive and in-
depth.

It is possible that in certain circumstances all the principles mentioned above may not be
helpful in resolving the obscurity or doubt. Then, if possible, direct recourse can be made
to the competent authority for an authentic interpretation. Such an interpretation will be
an explicit manifestation of the legislator’s mind.

1. Epieikeia: the term “epieikeia” means an “act of justice.”clv Its scope is to balance
or correct or to complete the application of law, whenever it is so warranted. In other
words, the nature of every law is such that, in some cases, it may grant imperfect justice
only, or no justice at all. Then “epieikeia” must enter. This concept of “epieikeia” is not
equivalent to the “equitable law” of the Romans, but is close to “equity” as found in
Common Law system which implies that when the literal observance of the law would
lead to injustice, “equity” is to be granted.clvi “Epieikia” may be understood as a benign
interpretation of the human law according to that which is just and good. St. Thomas
calls it “a virtue by which a person, though not observing the strict letter of the law, does
comply with the intention of the legislator.”clvii The legislator is presumed to intend what
is good. If, then, in a particular case, literal obedience to a precept (e.g., the obligation to
pray the daily Office) would be morally impossible or harmful (charity calls elsewhere or
illness), the presumption that the legislator did not intend to insist upon the enforcement
of his law under those circumstances (person involved considers himself/herself
dispensed from the obligation) is justified.
 42

“Epieikeia,” therefore, involves a more benign application of a law to a particular case by

a particular (private) person. Whereas, equity (canonical) is a benign application of the
law by public authority (e.g., a judge), or a tempering of the rigour of the law through
mercy.

Canon 18

Laws Subject to Strict Interpretation

Laws which establish a penalty, restrict the free exercise of rights, or

contain an exception from the law are subject to strict interpretation.clviii

Commentary

1. In the question of severe laws the Code offers further rules for interpretation. The
norm of canon 18 is based on two Regulae Iuris: “Adverse laws are to be restricted,
favourable ones amplified” (R.I. 15, in VIo) and, “Penalties are to be interpreted
benignly” (R.I. 49, in VIo).clix

To interpret law strictly means to give to the words of the law a minimum of extension,
while still respecting the meaning of the words and not attributing to them a meaning
contrary to the intention of the legislator, strict interpretation is not identical to restrictive
interpretation as the latter is in respect to the effect of interpreting a law, that is, it tends to
diminish the scope of the law. Strict interpretation clings to the text, and pays due regard
to the mind of the legislator but mitigates the rigour of the law as far as the nature of the
law permits. Canon 18 gives a taxative list of laws which are subject to strict
interpretation. Therefore, all other laws are to be interpreted broadly (not extensively). It
must be remembered here, however, that this rule is only a supplementary rule and may
be invoked only when, after having used other rules of interpretation mentioned in the
previous canon, the obscurity and ambiguity concerning the meaning of the law still
remains.clx

1. Three kinds of laws are to be strictly interpreted:

i) those which establish penalties of any kind, determined or undetermined,

vindictive or medicinal, even remedial penances. For example, canons 1364-1399:
“Penalties for Particular Offences,” are not to be extended to cases beyond the strict
meaning of their wording. Thus, the word “cleric” would include only deacons, priests or
bishops and not Brothers or seminarians; violation of the seal refers to the Sacrament of
Penance (once commenced), and not spiritual counselling, etc.

ii) those which restrict the free exercise of rights: The rights here include both
human rights (e.g., to marry, to nurture, to educate, to choose one’s state in life, to
associate, to be informed and to communicate, etc.); ecclesial rights (e.g., of the baptized
to celebrate the sacraments, to hear the word of God, to be formed in faith, of pastors, of
 43

religious, of bishops, etc.) and ecclesiastical rights (e.g., rights emanating from an office).
According to canon 18, therefore, laws which restrict or limit the free exercise of such
rights (e.g., laws on matrimonial impediments: cann. 1083-1094; irregularities and
impediments to orders: cann. 1040-1044), are to be interpreted strictly so as to leave
maximum latitude for the exercise of the underlying right. The reason for this is not only
respect for personal freedom and dignity, but also for the fact that the common good
demands the free exercise of rights.clxi

iii) those which contain an exception to the law: The Code explicitly provides in
several canons exceptions to the general law to respond to certain abnormal or
extraordinary situations. For example, the use of the extraordinary form of marriage
(can. 1127, §2); lay persons as judges (can. 1421, §2); such exceptions to general laws are
not necessarily harsh or severe, but the general and the usual norms are viewed as
beneficial to the society and, therefore, to be protected by the favour of the law.clxii

“Exceptions to the law” as mentioned in canon 18 are probably not meant to

include rescripts, privileges and dispensations which are governed by canons 36, 77,
92.clxiii

1. Some authors make a distinction between: “laws which contain an exception to

the law” (quae exceptionem a lege continent), and “laws which contain an exception in
the law” (quae exceptionem in lege continent).clxiv The exceptions implied in canon 18
seem to be restricted to derogations from a general law in the form of a law, or a general
precept, as illustrated in the examples above in iii). Clearer examples of this kind may be
found in post Code legislation containing exceptions to the law of the Code. “Exception
in the law” (e.g., canons excepting particular customs, laws, etc.) are considered an
integral part of the universal law destined for the common good.

1. Generally speaking, laws that impose a burden require strict interpretations; laws
granting favours or powers enjoy broad interpretation. Laws which are partly
burdensome and partly favourable are subject to a twofold standard of interpretation
insofar as the favour and the burden can be separated. If this separation is impossible and
the general rules of interpretation do not reveal the intention of the legislator, the entire
law is considered favourable and, therefore, subject to broad interpretation.clxv

Canon 19

Suppletory Sources of Law

If a custom or an express prescript of universal or particular law is lacking

in a certain matter, a case, unless it is penal, must be resolved in light of laws
issued in similar matters, general principles of law applied with canonical equity,
the jurisprudence and practice of the Roman Curia, and the common and constant
opinion of learned persons.clxvi
 44

Commentary

1. Canon 19 admits the fact that despite the good will and diligence of the legislator,
there could exist deficiencies (lacunae) in the legislation. Laws by nature are meant to
provide for the general situation. Therefore, there are situations, times and matters which
demand particular remedies to concrete cases. Legal and juridical solutions to such
particular situations must be provided outside the stated law. It is to fill this lacuna that
canon 19 supplies four objective sources to remedy the absence of norms not only in
general but also in particular law.

1. Thus, in the absence of an express prescript concerning some matter, either in a

general or particular written or customary law, a norm must be taken from supplementary
sources. The lawgiver obliges the competent superior or the judge to have recourse
exclusively to the sources specified by him:

1. a) Laws enacted in similar matters: Here the reference seems to be primarily to

ecclesiastical laws; but civil laws are to be referred to when they are canonized by the
Church as per canon 22. The system of analogy of law (analogia legis) has always been
a supplementary source of law in every juridical system. The analogy of law can be
present only when there is real resemblance between the cases being studied. In the
absence of such a resemblance, the analogy of law is unjustified. Examples of analogy of
law are:

- what is said of one’s capacity to consent in canon 1095 is also applicable to

one’s capacity to promise marriage stipulated in canon 1062,§1.

- Canon 1291 on the alienation of ecclesiastical goods also applies to their buying;
that is, from the point of view of the buyer who sees the fulfilment of certain conditions
in order that the purchase be valid.clxvii

- Canons 1574-1581 on the appointment of experts are also applicable in the

hearing of non-consummation cases since the procedural law does not treat of such
matters in detail.

1. b) The general principles of law observed with canonical equity: This source has
been called by jurists analogia iuris. Some authors want to restrict “general principles of
law” to General Norms of the Code, while others emphasize the need to take into
consideration the universal and fundamental principles evolved from the law of
nature.clxviii For example, the principles contained in “Regulae Iuris” which are the works
of jurists of wide repute would fall into this category. Two hundred and eleven of these
Rules of Law are contained in the Digest, and ninety nine other rules are contained in the
authentic collections of canon law published by Gregory IX (the Decretals of Gregory
IX, usually symbolized by the use of the Roman numeral, X), and by Boniface VIII (the
Liber Sextus, usually designated by the use of the symbol, in VIo). The Rules of Law
facilitate the interpretation and application of canon law. They must be used with caution
 45

as they are broad principles and, therefore, inexact. Therefore, before applying a rule of
law, one should determine whether: 1) the case is identical with that covered by the rule;
2) the case is an exception to the rule.clxix

Canon 19 emphasizes the need to apply the rules of law and other general principles with
the equity proper to canon law, that is, “with justice tempered with mercy,” with the
common opinion of learned canonists, and with the jurisprudence and praxis of the
Roman Curia.

1. c) The jurisprudence and praxis of the Roman Curia: In the 1917 Code the word
“stylus” was used in canon 20. This word has been left out in favour of “jurisprudence”
in the revised canon. The term “stylus” more accurately implied the form and reason
(forma et ratio) used in the procedure in resolving ecclesiastical affairs.clxx The term
“jurisprudence” is the science of law insofar as it is applied to concrete cases. The term
“praxis” refers to principles and norms uniformly applied in judging similar cases. Some
authors regard “stylus et praxis” as identical to “jurispurdentia.”clxxi However, the law
distinguishes between “jurisprudentia” and “praxis,” because canon 19 regards them as
two distinct supplementary sources of law. Ecclesiastical jurisprudence, especially of the
Signatura, Rota, and Congregations is probably the most common source of supplying the
deficiencies in the law.clxxii Jurisprudence on the notion of “discretion of judgement” and
“incapacity to assume the essential obligations of marriage” (can. 1095, 2o and 3o) is one
of the best examples of how jurisprudence of the Rota supplied for the lacuna in the 1917
Code on the matter.

1. d) Common and constant opinion of learned persons: Legal experts do not have
any power to formulate any new laws or pronounce any authentic interpretations. In
canon 19, however, their opinion is acknowledged as a legitimate norm for
supplementing positive law provided that it is common and constant. Traditionally, to be
called “common,” an opinion must be accepted pointedly (ex professo) by at least six
authors of wise repute; if accepted by less than six, it is not common but “controvertible”
(controversa); if accepted by practically all, it is called the “most common opinion.” An
opinion is called “constant” if it perseveres after it has turned a “common” opinion.clxxiii
According to canon 19, therefore, when an opinion is common and constant, it becomes a
source for supplying the deficiency in the law on particular matters.

The four supplementary sources mentioned above are not set in order of priority. All
seem to be equally important. One or the other might prove more useful in a particular
case.clxxiv

1. No sources are indicated as supplementary in the application of penal laws, and it

is not permissible in relation to them to argue from analogy or supplementary sources. If
the law is silent no penalty exists (see can. 6, §1,3o). However, a legislator may enact
penal laws or attach penalties to the existing laws when there is very grave necessity (see
can. 1315). Nevertheless, the legal principle: “nulla poena sine lege” remains paramount
in canon law. Moreover, as Chiappetta notes, there are some laws in the Code which are
not amenable to the application of the principle of supplementary sources of law since
 46

their subject matter requires an express disposition of law, for example:

in matters of nullity of an act or disqualification of a person (can. 10);

irregularities and impediments to the reception and exercise of orders (can. 1040);
matrimonial impediments (can. 1058).

In canon 2219, §3 of the 1917 Code it was also expressly stated: “Penalties are not to be
extended from person to person, or from case to case, though there is the same or even a
greater reason.”

Authors are not in agreement in regard to application of the principle of supplementary

source of law in relation to limitation of free exercise of rights dealt with in canon 18.clxxv

Canon 20

Abrogation and Derogation of Laws

A later law abrogates, or derogates from, an earlier law if it states so

expressly, is directly contrary to it, or completely reorders the entire matter of
earlier law. A universal law, however, in no way derogates from a particular or
special law unless the law expressly provides otherwise.clxxvi
 47

Commentary

1. A law may cease either through extrinsic or intrinsic causes. Canon 20

deals with the cessation of law through extrinsic causes. The positive act of the
legislator is one of these canons and operates through four types of action:
abrogation, derogation, obrogation and complete reordering of the subject matter
of the earlier law.

According to canon 20, a subsequent law abrogates i.e., repeals, a former law when:

i) the subsequent law itself expressly contains the provision, that is, a repealing
clause; for example, canon 6, §1,1o expressly abrogates the Code of 1917. Abrogation is
express if it is declared in explicit words or equivalent clauses e.g., “whatever contrary
notwithstanding.”

ii) the subsequent law is directly contrary to the earlier one: It should be clear
from the text and context that the subsequent law is inconsistent with the previous one.
The older one yields to the newer. In this case, there is no need for the legislator to
mention the revocation expressly. For example, a bishop may introduce a new law (on
clerical habit) which is directly contrary to a former law on the same matter without
mentioning the fact that the former is repealed.

iii) the subsequent law entirely reorders the subject matter of the former law: This
clause implies that, when the subject matter of the former law is completely reordered in
the new, not only are the provisions in the former law incompatible with the new one
repealed, but also, by legitimate presumption, the unaltered or unmentioned sections of
the former.clxxvii For example, computation of consanguinity in the collateral line (can. 96,
§3, 1917 Code) is completely reordered in canon 108, §3 of the new Code. Another
classic example is the norms of the motu proprio Matrimonia mixta, of 31 March 1970,
now completely reordered in canons 1124-1129.

1. A universal law does not derogate from a particular or special law unless the later
universal law expressly provides otherwise. A particular law, that is, one destined for a
particular territory, and a special law, that is, one binding certain category of persons
(e.g., the religious) is not repealed by a subsequent universal law unless the latter
expressly says so.
 48

Authors remind us here that particular statutes or laws, mentioned in this canon, whether
particular or special, are those which are given or specially confirmed (forma specifica)
by the legislator who enacts the universal law, and not other laws which do not proceed
from or are confirmed by him. Thus, for example, canon 73 states that no rescripts are
revoked by a contrary law, unless it is otherwise provided in the law itself. The reason
for such a prescript lies in the fact that the legislator is not expected to remember all
particular and special laws given either by himself or by his predecessors. Moreover,
since the Church is composed of so many groups of people with such variety, it would be
unreasonable to insist on strict uniformity in ecclesiastical law. Therefore, the legislator
does not wish to abrogate his own particular laws or those of his predecessors.clxxviii

1. Author of revocation: the legislator, “All things through whatever causes they
come into being, are dissolved through the same” (R.I. 1, in Decretals); his successor
who has the same power; his superior who has the greater power; his delegate (cfr. can.
135,§2); inferior legislators can revoke their own laws unless they are confirmed (forma
specifica) by the supreme legislator.

Every revocation of law must be justified by good motive, at least as regards liceity of
repeal. All changes in legislation must be guided by the good of the community.

Canon 21

Doubt About Revocation of a Law

In case of doubt, the revocation of a pre-existing law is not presumed, but

later laws must be related to the earlier ones and, insofar as possible, must be
harmonized with them.clxxix

Commentary

1. Canon 21 simply states that in a case of doubt whether a previous law is revoked
or not, the revocation of it should not be presumed, because the law is still in possession
and is presumed to be useful for the good of the community; therefore, its cessation
should be considered odious.

1. Commentators on canon 23 of the 1917 Code, which was identically the same as
the present canon, had diverse opinions concerning “doubtful revocation.” Some
maintained that if there were positive and solid arguments in favour of doubting the
cessation of a law, the principle: “a law in doubt of law does not bind,” could be applied.
For, since canon 23 (1917) was expressed negatively, it seems to have stated only that
much: a new law on a certain matter does not constitute sufficient foundation for the
revocation of the previous law.clxxx

But, Regatillo held the contrary opinion, namely in a case of doubt concerning the
revocation of a law, a positive presumption in favour of a previous law must be upheld,
and this was based on canon 6, 4o (1917) which stated that in a case of doubt whether a
 49

certain canon is in harmony with a previous law, the previous law must be retained.clxxxi
Even though canon 6, 4o (1917) has been omitted in the new Code, the validity of the
principle seems still relevant to the interpretation of the present canon.

1. Is promulgation of revocation necessary? It seems Suarez upheld promulgation if

revocation took place through substitution of a new law; otherwise, an internal act (in the
legislator) in itself was sufficient. But for proper government of a community intimation
of such a revocation to the people is necessary. If revocation takes place through
substitution of a new law, the general principle concerning promulgation and vacatio
legis holds good unless the legislator states otherwise.clxxxii

Since there has been a great deal of legislation after the promulgation of the 1917 Code,
and especially after the Second Vatican Council, it is quite possible that there might still
be doubt concerning the revocation of certain interim legislation.

Canon 22

Canonization of Civil Laws

Civil laws to which the law of the Church yields are to be observed in
canon law with the same effects, insofar as they are not contrary to divine law and
unless canon law provides otherwise.clxxxiii

Commentary

1. A better translation of this canon would have been: “The civil laws to which the
law (ius) of the Church remits ...,” because the Church law does not “yield” to civil law
in a passive sense.

Canon 22 is new and is general in character. It acknowledges the fact that not all matters
that concern the well-being of the People of God can be regulated solely by ecclesiastical
law. There are situations in which civil law may have the most appropriate and
canonically and morally acceptable solutions. Similarly, there may be situations in which
there is an overlapping of certain aspects of a problem which may come under either civil
or ecclesiastical competence, and yet civil law itself may be able to offer a more
appropriate solution; or in certain matters, a canonical solution itself may be the most
appropriate one. In view of this situation, the legislator wishes to canonize certain civil
laws which should be observed in canon law with the same effects.

The principle of canon 22 is the fruit of a long process with its immediate source in
several of the 1917 Code which had referred to civil law, especially canon 1529. This
canon canonized civil legislation on contracts. This has been now stated in the form of a
general principle in the new Code within the title “Ecclesiastical Laws” of the “General
Norms,” thus sanctioning in a definitive way the so called “canonization” of civil law,
and formally recognizing the state law as a supplementary source for canon law for those
cases expressly stated by the legislator.clxxxiv
 50

Before the 1917 Code, referral to civil laws concerned exclusively the norms of Roman
law, which constituted the juridic supplementary source on temporal matters not
legislated by canon law, and the Roman law norms were regularly applied in
ecclesiastical tribunals. With the promulgation of the 1917 Code, the Roman law ceased
to have much juridic value to ecclesiastical law which referred to civil law of each state
in various canons. With the coming into effect of the 1983 Code, today such referral has
considerably widened. Canon 22 serves as a general principle, which is found in several
canons dealing with concrete situations.

The reason for this referral seems obvious. There are matters that are of common interest
to both the Church and the State. In recognition of this common link between the two
systems, canon 22 is meant to promote mutual cooperation in order to avoid conflicts.
The value of the canon lies also in the Church’s adaptability to the needs of peoples of
different countries. The Church does not relinquish its right to enact its own laws
different from, or even contrary to, civil laws.clxxxv

In virtue of canon 22, the civil laws mentioned specifically by the Code are assumed into
ecclesiastical order and are canonically sanctioned. For this reason, they are linked to the
Church, but not without reservation, that is to say: the civil laws are not to be contrary to
divine law, which no one can violate, and that canon law (those laws contained in the
Code, those outside the Code, or customary, universal and particular laws) does not
determine otherwise, as for example, in the matter of prescription, in which the Code of
Canon Law differs notably from civil codes on the requirement of good faith, the object
and time (cann. 197-199).clxxxvi

1. Some of the canons which refer specifically to civil law are:

- canon 98, §2: appointment of guardians;

- canon 105, §1: emancipated minor;
- canon 110: parents of the adopted children;
- canons 197-199: prescription and civil legislation of each country; and canon
1268;
- canon 231, §2: worthy remuneration to lay persons involved in the special
service of the Church, with due regard to the provisions of the civil law;
- canon 289, §2: exemption from exercising duties and public civil offices alien to
the clerical state;
- canon 668: Religious - will and renunciation of personal goods;
- canon 877, §3: in the case of baptism of an adopted child, the names of the
adopting parents and, at least if this is done in the local civil registration, the names of the
natural parents are to be registered;
- canon 1059: competence of the civil authority in respect of the merely civil
effects of marriage;
- canon 1062, §1: particular law governing an engagement - after consideration of
such customs and civil laws as may exist;
- canon 1071, §1,2o: prohibition to assist, without the permission of the local
 51

Ordinary, at a marriage which cannot be recognized by the civil law or celebrated in

accordance with it;
- canon 1094: diriment impediment of legal adoption;
- canon 1105, §2: one of the ways the mandate for marriage by proxy can be had
is through a document which is authentic according to the civil law;
- canon 1284, §2,3o: observance of civil law by all administrators of ecclesiastical
goods;
- canon 1286: the principles of the Church and the civil laws relating to labour
and social life to be accurately observed in making contracts of employment;
- canon 1290: civil law to be observed with regard to contracts and the voiding of
the same;
- canon 1299, §2: “mortis causa” disposition;
- canon 1500: possessory action;
- canon 1672: competency of the civil courts in cases concerning the merely civil
effects of marriage;
- canon 1692, §§2 and 3: the separation of spouses and the competence of civil
court;
- canons 1713-1714: settlement and reconciliation;
- canon 1714: civil law of the place where the pact is made: norms for
agreements, mutual promises and arbitral judgments;
- canon 1716, §1: the need for recognition of the force of an arbitral judgment by
the civil law;
- canon 1716, §2: challenge to an arbitral judgment before a civil judge and before
an ecclesiastical judge.

TITLE II

CUSTOM

1. As mentioned in the preceding title, ecclesiastical laws are not simply a system of
written laws. They include also customary laws. Custom is a legitimate source of
objective law (ius canonicum). Custom is a norm introduced by a community with an
intention of binding its members in a particular way. It is called also the “unwritten law.”
The Code itself does not provide a definition of custom, but one can be formulated from
canon 23 which contains its essential elements. In a proper sense, custom is the
behaviour of a community of faithful which, when approved by a competent authority,
acquires under determined conditions the force of law. The canons of title II are
concerned with how a factual custom can attain the status of law. Title II identifies five
conditions necessary for a factual custom to attain the force of law:

- Approval of competent legislator (can. 23)

- Absolute conformity with divine law (can. 24, §1)
- Reasonableness of the custom (can. 24, §2)
- Capacity and intentionality on the part of the community (can. 25)
- Prescribed time period (can. 26).clxxxvii
 52

The Eastern Code treats the matter of custom in Chapter II of Title XXIX and has
organized the relevant norms in four canons (1506-1509) compared to the six (6) in the
Latin Code. The basic principles are the same in both Codes, but with two notable
differences: a) The first paragraph of the very first canon (1506, §1) expresses a
theological rationale for custom as it states: “insofar as it corresponds to the action of the
Holy Spirit in the ecclesial body ...,” which, I believe, is presupposed in the Latin canons
on custom; b) Canon 1508, §4 stipulates: “Even before that time, a competent legislator
can approve a custom as legitimate by his consent, at least tacit.” This norm is not
explicitly stated in CIC 83, but it seem to be implied in canon 26, although the clause, “at
least tacit” is peculiar to CCEO.

Canon 23

Legal Custom

Only that custom introduced by a community of the faithful and approved

by the legislator according to the norm of the following canons has the force of
law.clxxxviii
Commentary

1. Cardinal Suenens, in his observations to the 1980 Draft, expressed a legitimate

concern with regard to canonical requirements for the juridical value of custom in the life
of the Church. He said that the restrictions introduced in the canons concerning the
validity of customs in the Church are severe. These restrictions do not acknowledge the
importance of customs in the history of the Church and constitute a hindrance to the
growth of younger Churches (non-Western). Furthermore, there is mention of centenary
custom: What would be the value of such an expression for missionary communities that
have emerged in recent years? he asked.clxxxix This observation of Cardinal Suenens was
rejected by the Code Commission as too general and without foundation. Our reflection
and study of the canons on customs and our life in different pastoral situations should
enable us to appreciate the validity and relevance of Cardinal Suenens’ comments.

1. In a broad sense, custom is “the frequent repetition of similar acts of a certain

community.”cxc This is also called “custom of fact.” Such an action by the community
may generate juridical or legal obligation. In a juridical sense, custom is “an unwritten
law (ius non scriptum) introduced by the long continued practice of a community and
approved by the legislator.”cxci This is also called “custom of law.” “Custom of fact”
would naturally precede “custom of law” or “customary law.” In other words, as law,
factual custom, when possessed of the conditions established by the legislator, obtains the
force of juridic obligation.

1. Elements of custom include:

a) material element: a repetition of acts capable of being a matter of law and

 53

originating from a community capable of receiving the law; the repetition of acts must be
in keeping with divine and natural law (see can. 24).

b) formal/juridical element: approval by the competent ecclesiastical authority.

1. The “legislator” mentioned in canon 23 include the Supreme legislator, an

Ecumenical Council (for the Universal Church); an Episcopal Conference, a Regional
Council, a Provincial Council, a Diocesan Bishop (and those equivalent to him) in or
outside a Synod, Major Superiors of pontifical clerical institutes, etc.

According to canon 23, the legislator is the efficient cause by which a factual custom
becomes law, that is to say, it is given the force of a written law. In the Church, since the
faithful are not endowed with any share of legislative authority, only the consent of
competent authority can give to a factual custom this effect.cxcii

1. During the first few centuries of the Church, customs of fact were more frequent
and these greatly influenced the formation of discipline in the Church. Several juridical
institutions, such as celibacy, matrimonial impediments, etc., were introduced by custom.
Originally, customs were according to law (iuxta legem), which they were
supplementing.cxciii Customs against law (contra legem) started around the XIIth century.
Gratian acknowledged them and so did the decretists and all canonists. Several
questions, however, remained to be solved, namely the time and requisite conditions for a
custom to have legal force.cxciv

Since the middle ages, authors held the opinion that the consent of the legislator was
necessary for a custom to have legal force. The argument underlying this opinion was
that, since a custom imposes an obligation, it requires the intervention of public authority.
In the Church, such authority is vested in the legitimately appointed superiors. Some
authors maintained that the consent of the legislator must be a special or personal
consent, that is, a special, concrete act by which a particular custom is approved. The
greater number of canonists, however, have maintained that a general or legal consent,
given in a general way, for instance in a written law, and approving of all customs which
fulfill certain conditions, is sufficient for giving customs legal force. Since the
promulgation of the 1917 Code, practically no commentator has denied that the legal
consent embodied in the Code is sufficient for the validity of custom.

1. “Approval of the legislator” is not a simple permission, but a “true consent,” a

juridic act, which is required for a particular custom to have the force of law. By such a
consent a continual mode of acting on the part of a community receives juridic or legal
force. Such a consent may be: express, when given orally or in writing, explicitly or
implicitly; tacit, when given by the silence of the legislator who is aware of the existence
of the custom and is in a position to oppose it or remove it without much inconvenience;
legal, when given in advance by establishing conditions for a custom to have legal force,
e.g., canons 24-26. Not only explicit and implicit consent but also legal consent is
sufficient for the juridical recognition of a custom.cxcv
 54

The superior (legislator) competent to give juridic force to a custom is the one who has
legislative power over those who introduce the custom in regard to the precise matter
affected by the custom. Accordingly, for the juridic recognition of a local custom
contrary to common law the consent of the pope is necessary.cxcvi

1. The new Code refers to legitimate customs in a number of canons, e.g.:

- canon 952, §2: Where there is no such decree [determining mass stipend], the
custom existing in the diocese is to be observed.
- canon 1062, §1: An engagement is governed by the particular law which the
conference of bishops has enacted, after consideration of such customs and civil laws as
may exist.
- canon 1119: Use of liturgical rite for the celebration of marriage: those
prescribed in the liturgical books or those acknowledged by lawful customs.

Canon 24

Customs Contrary to Divine or Canon Law

§1. No custom which is contrary to divine law can obtain the force of
law.cxcvii

§2. A custom contrary to or beyond canon law (praeter ius canonicum)

cannot obtain the force of law unless it is reasonable; a custom which is expressly
reprobated in the law, however, is not reasonable.cxcviii

Commentary

1. Canon 27 of the 1917 Code outlined several conditions for a custom to obtain the
force of law. The present canon is more direct and succinct. It states:

i) no custom which is contrary to divine law can obtain the force of law. Since no
human positive law can “derogate” from the divine law, the term “derogate” has been
eliminated in this canon.
ii) a custom whether contrary to or apart from canon law must be “reasonable” to
obtain force of law. This prescript is applicable to all “contrary” or “apart from” customs.
No specific mention is made of centenary or immemorial custom. The time element
required for the prescription of a custom is mentioned in canon 26.

iii) a custom which is expressly reprobated in law is not reasonable. This

stipulation is identically the same as it was in canon 27 of the 1917 Code.cxcix

1. In our comments on canon 5, a custom in relation to the law has been

distinguished into: according to law (secundum legem); beside/beyond the law (praeter
legem), and against the law (contra legem):
 55

- a custom according to law (secundum legem), is the one which emerges from a
second interpretation of the law;

- a custom beside/beyond law (praeter legem) is one which makes up

(supplements) certain deficiency in law or introduces a way of acting in addition to the
law;

- a custom contrary to law (contra legem) exists when it is opposed to an existing

law, namely it introduces a practice at variance with existing law.

1. According to canon 24,§1, no custom which is contrary to divine law, whether

natural or positive, can obtain the force of law. The consent of the legislator is the juridic
foundation of custom. However, the human legislator has no power to contravene divine
laws or to declare just what is sinful even if it has been repeated by the whole
community for a long period of time. St. Thomas explained that divine laws (natural or
positive) proceed from divine will and, therefore, they cannot change by a custom
proceeding from human will, but only by divine authority.cc Thus, for example, customs
contrary to the Decalogue cannot become accepted norms of law.

1. One of the essential requirements for a factual custom to have force of law is that
it must be reasonable. Therefore, an unreasonable custom contrary to or besides merely
ecclesiastical law cannot have force of law. A custom is not reasonable if it is an
occasion of sin, if it is harmful to common good, if it is contrary to the constitution of the
Church or to the fundamental principles of canon law, if it is subversive of ecclesiastical
discipline, etc.cci The matter of a custom should be honest possible, just and useful.

1. Also according to canon 24,§2, “a custom which is expressly reprobated in the

law, however, is not reasonable.” To reprobate means to reprove with vehemence, to
censure severely, reject strongly, etc. In the new Code, several customs are expressly
reprobated: custom contrary to the freedom of the bishop in choosing his companions for
pastoral visitation (can. 396, §2); electing more than one diocesan administrator (can.
423, §1); introducing or abrogating matrimonial impediments (can. 1076); against the
obligation of filing the annual report concerning administration of ecclesiastical goods
(can. 1287, §1); contrary to the precept requiring collegiate tribunals for marriage nullity
cases (can. 1425, §1). These canons reprobate customs in force at the time of the
promulgation of the new Code and preclude their reintroduction in future (see can. 5, §1).
In the 1917 Code, there were several customs reprobated in law and they are omitted in
the new Code.ccii

1. Cappello makes a distinction between a clause which reprobates into declarative,

that is, one which concerns intrinsic nullity, or dispositive, that is, through law. A custom
which is referred to by a declarative clause is always and intrinsically unreasonable;
whereas, a custom which is reproved through a dispositive clause, is not intrinsically
unreasonable; therefore, with a change in circumstances, such a custom may turn out to
be reasonable. In the latter case, the identification of reprobation must be found in the
will of the legislator alone who says that some customs which were reasonable until the
 56

new Code came into effect are not unreasonable.cciii

1. Is good faith in the introduction of a custom essential for that custom to have
juridical force? During the Middle Ages, canonists taught that good faith was not
necessary for the establishment of a custom. During the modern period, some authors
argued that bad faith was necessary for the beginnings of the establishment of a custom
against the law, since otherwise, subjects would not know they are acting against the law,
and could not want to introduce a new obligation. The common teaching of the
commentators of the Code has been that neither good nor bad faith is necessary for the
introduction of a custom.cciv

Canon 25

Necessity of Capacity and Intention to Introduce Custom

No custom obtains the force of law unless it has been observed with the
intention of introducing a law by a community capable at least of receiving law.ccv
Commentary

1. Who can legitimately introduce a custom? Canon 25 states: “a community

capable at least of receiving law.” But as to which communities in the Church are
capable of introducing customs is disputed by authors. In a sentence of the Apostolic
Signatura, 1 July 1972, on a marriage case in which the effect of custom on the famous
Trullan canon 72, §1, was discussed at length, Cardinal Staffa says:

A community capable of receiving a law and introducing a custom is in

our opinion which we set forth in our commentary on canon 26, C.I.C.,
“any group of the faithful, united together by any kind of bond, insofar as
it may be to the public good that the group be regulated by law. Then
there is had a community to which the essential element of a juridical
norm can be adapted: a plurality of persons whereby a juridical norm of
common precept is rendered possible, and the common good to which law,
by its nature, is directed. Moreover, because law requires a certain
firmness, it is necessary that the community possess a certain stability.”ccvi

From the above definition, Staffa argued that all baptized persons, inasmuch as they have
personality in the Church, must be considered as the Christian faithful. Accordingly, the
Orthodox constitute a community capable of receiving an ecclesiastical law since they
have been baptized and, as a result, incorporated into the Church, and its members are
persons in the Church, but not in full communion with the Catholic Church. Therefore,
its subjects can be bound by the laws which the Church wishes to impose on them,
whether all of them, or only some of them.ccvii

1. The court judging the above-mentioned case maintained that a legitimate custom
contrary to canon 72,§1 of the Council of Trullo had indeed obtained the force of law;
therefore, the marriage between a Protestant and a Russian Orthodox was not found to be
 57

null on the basis of diriment impediment of mixed religion. The conclusion that is of
importance relative to canon 25 on the subject of custom is that even a non-Catholic
community may introduce a legitimate custom and such a custom may obtain force of
law if other essential conditions are met.

1. Chiappetta identifies three divergent opinions concerning communities capable of

introducing customs in the Church: The first group of canonists adhere to a strict criterion
in designating a community capable of introducing a custom. They intend to identify
only those ecclesiasl communities which are perfect or have an autonomous organization,
such as the universal Church, an ecclesiastical province or region, a diocese, a clerical
institute of pontifical right, governed by proper authority endowed with legislative power.
These authors exclude imperfect communities which lack legislative autonomy, or proper
legislators. The second group of authors adopt a much broader criterion which would
include even a community of certain importance, e.g., a city, a chapter, a non-clerical
institute of consecrated life, and even an entire class of persons (like, clerics, religious,
lay persons, etc.); they exclude from this category, however, private persons, simple
familial communities, a religious house, pious associations, etc. The third group open the
parameters of the community mentioned in canon 25 much wider. As far as the parish is
concerned, there are those who, with founded reason, include it within the category of a
community capable of introducing a custom.ccviii

When canon 25 says a “community” capable of receiving law can introduce a legitimate
custom, it does not require unanimity in a Christian setting but the majority of members
concerned with the matter which the custom regulates, e.g., clerical dress. All those
capable of positing human acts may contribute to the establishment of a custom. Of
course, those who are insane and those who have not reached the age of reason cannot be
considered capable of receiving law and, therefore, introducing a custom. There is no
unanimity among authors on whether minors can contribute in any way to the
introduction of a custom.

1. A custom arises only from the frequent repetition of an act that is:

- voluntary and free: without the influence of fear, ignorance, error or coercion;

- external and public: custom is a social norm of the community which is external
and public; if it were not external and public the members of the community could not
agree to give their consent in determining the matter of the custom, and accepting it as a
law;

- frequent: this element is implied in the very definition of custom; a positive

custom requires the frequent commission of acts; negative custom, frequent omissions;

- uninterrupted: this is required so that the positing or omission of acts does not
denote a change of will to the contrary before the custom has been extant for the time
required by law;
 58

- uniform: at least morally so to indicate that the acts concern the same matter;

- carried out with the intention of obliging themselves or of freeing themselves

from an obligation: such an intention is necessary for the custom to obtain juridical force;
however, it is sufficient that the intention be implicit. Knowledge of the law or good faith
is not necessary. Cappello points out that, such an intention can be present also when
there is concomitant error or ignorance and bad faith. Excluded from this are only
antecedent ignorance and error, that is causing such an intention.ccix Facultative acts
which are posited out of mere liberality, civility, devotion, etc., are also excluded from
becoming custom.

Canon 25, therefore, stipulates that, in order for a custom to have juridical force: a) it
must be introduced by a community which is capable of receiving law; b) it must
introduce a custom with an intention of introducing a law; c) the act, the repetition of
which leads to factual custom, must be free, external (public), frequent and uniform, and
uninterrupted.

Canon 26

Time for a Custom to Have Legal Force

Unless the competent legislator has specifically approved it, a custom

contrary to the canon law now in force or one beyond a canonical law (praeter
legem canonicam) obtains the force of law only if it has been legitimately
observed for thirty continuous and complete years. Only a centenary or
immemorial custom, however, can prevail against a canonical law which contains
a clause prohibiting future customs.ccx

Commentary

1. Canon 27, §1 of the 1917 Code spoke of lawful prescription of a custom after it
has been in use for forty complete and continuous years. The term “prescription” has
been eliminated in canon 26 and this omission is fully justified because prescription,
which is a legal tool by which certain subjective right is transferred after a specified
period of time, actually does not take place in this situation.ccxi

1. The mention of a special consent of the legislator is a new element introduced into
this canon. The time period required for a custom contrary to or apart from current canon
law to obtain force of law is the legitimate observance of that custom for thirty
continuous and complete years. It was forty years in canon 27, §1 of the 1917 Code.
Before the 1917 Code, the period of time required for customs to obtain the force of law
was not definitely specified, wherefore there was a great diversity of canonical opinion,
on this point. Reiffenstuel, for example, held the opinion that ten years were sufficient
for a custom praeter or contra legem, to be established legally. Majority of authors
conceded that the period of ten years was sufficient, provided the other conditions were
present, to abolish a law by contrary custom.
 59

The 1980 Draft, (Can. 26) had stipulated: “[...] obtains the force of law only if it was
legitimately observed for twenty continuous and complete years.” At the suggestion of
two Cardinals, a compromise was made between twenty and forty years. Thus the 1981
Relatio introduced a thirty year period for a contrary to or beside the law custom to have
juridical force.ccxii The principal reason for this change was fear of abuse of such a short
duration.

1. Canon 26 speaks of “specific approval” of a custom contrary to or apart from the

current law by the competent legislator. This “specific approval” may be regarded as a
special sanctioning of a determinate custom without reference to time element. Is
“specific approval” same as “consent”? It seems yes. Consent may be given in three
ways: a) expressly, by explicit words or signs; b) tacitly, by such conduct as implies
consent; c) legally, through laws which in advance give the consent of the Superior to
customs which shall have endured for the prescribed period of time under specific
conditions. In these cases the consent of the superior is given legally and it is sufficient.
Neither express (explicit) nor tacit consent is required.

1. Canon 26 seems to imply that “specific approval” would render a factual custom,
whether it is contrary to or apart from the law, immediately legitimate and juridically
binding. The intent of the legislator implied in “special approval” must be express. But
in the case of a custom which has lasted 30 years without the intervention of the legislator
there is express (implicit) approval by the legislator because it is already given by the law
itself, e.g., by this canon (26), and it is said to be legal, provided there had been no
interruption of it by a different usage by the same community or by a change of mind of
the community not to introduce the law; or through the direct intervention of the superior
of the community.

1. Canon 26 speaks of 30 complete and continuous years. According to canon 201,

§1, “continuous time is understood as that which undergoes no interruption.'” And canon
202, §2, states; “If the time is continuous, a month and a year must always to be taken as
they appear in the calendar” (also see canon 203).

Wherefore, if the community should spontaneously change the custom even only once, or
the superior publicly oppose it (by a judicial sentence, or by a penalty against those
involved in it, or by an authentic declaration), custom is not continuous. However, it may
begin again from that moment and, at the completion of the required period (30 years), it
can obtain juridical force, provided that it has all the required characteristics from the
beginning and through the entire period.ccxiii
1. According to canon 24, §2, a custom expressly reprobated in law is not
reasonable; not even a centenary or immemorial custom may prevail against such a law.
However, if a custom is merely prejudicial to an ecclesiastical law forbidding future
contrary customs, a centenary or immemorial custom may prevail. Neither the 1917
Code nor the new Code seem to have canons with a “prohibitive clause.” Hence, canon
26 must refer to future universal or particular legislation containing clauses forbidding
the introduction of contrary customs. For example, in enacting laws on clerical dress, a
 60

bishop may decide to include a “prohibitory clause” with regard to customs. The
“prohibiting clause” referred to in canon 26 is to be carefully distinguished from the
“reprobating clause.”

Canon 27

Interpretative Value of Custom

Custom is the best interpreter of laws.ccxiv

Commentary

1. Canon 27 of the new Code is identical to canon 29 of the 1917 Code. The
principle underlying canon 27 has been borrowed directly from the Digest 1, 3, 37. This
principle was introduced into the list of Reguale Iuris in a different form: “In obscure
matters we look for what is more probable or for what was customary.”ccxv

The principle of canon 27 implies that the practice (custom) of the community, the way
that the law is usually applied there, clarifies and confirms the meaning of the law, and
that it is the best among all the indicators of the law’s meaning.ccxvi It is understood here
that the practice of the community is in accordance with the law. If the law is clear, such
a practice is simply a vivid expression of its faithful execution on the part of the
community (consuetudo executiva). If the law is obscure or doubtful, custom supplies it
with an interpretation which is called by the legislator himself as the best one, because of
its certain and uncontested efficacy. However, such a custom (consuetudo usualis) has
no obligatory force until it has been lawfully prescribed, although, even prior to the
completion of the required time, its actual interpretation of the law should be preferred to
any other kind of interpretation.ccxvii In other words, it has the presumption of truth and
may be safely followed.

1. According to majority of authors, the principle “custom is the best interpreter of

laws” of canon 27 is applicable only to a custom according to law (iuxta legem), whether
it pre-existed the law or followed it. Therefore, if the interpretative custom really differs
from the law and thus constitutes law (either contra legem or praeter legem), it is subject
to the conditions for customs stipulated in canons 24, 25, 26.ccxviii Chiappetta, however,
mentions that some modern authors extend the principle of canon 27 even to customs
contrary to or beside the law, thus attributing to it a general value.ccxix

As J.A. Coriden points out, the principle of canon 27 is based on a confidence that the
members of a community understand the real purpose of the law and observe it so as to
appropriately achieve that end. Or, when the custom preceded the law, it assumes that the
law was based on the custom, and is the clearest way to the meaning of the law. More
fundamentally, the rules on custom are rooted in the conviction that the Holy Spirit is
present in and guides the community of the faithful, and that such a direction may be
realized in the actions of the people as well as in the enactments of the legislator.ccxx
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Canon 28

Revocation of Custom

Without prejudice to the prescript of can. 5, a contrary custom or law

revokes a custom which is contrary to or beyond the law (praeter legem). Unless
it makes express mention of them, however, a law does not revoke centenary or
immemorial customs, nor does a universal law revoke particular customs.ccxxi

Commentary

1. Canon 5 deals expressly with customs contrary to or beside the prescripts of the
1983 Code that existed at the time when it came into effect (27 November 1983). Canon
28, however, concerns other customs whether these existed prior to or after the new Code
came into effect, and deals only with the causes which induce extrinsic cessation of a
custom.
2. A custom may cease:

i) intrinsically, through the change of matter of the custom, if this latter ceases to
be honest, just, and possible, or through the cessation of the purpose of the custom;ccxxii

ii) extrinsically, by a contrary custom or law, or by direct revocation of a

competent superior.

As indicated above, canon 28 deals with the extrinsic cessation of a custom. As a law can
be revoked by a contrary law or a contrary custom, so a custom can meet the same fate
and legally cease to exist on account of a contrary custom or a contrary law. But only in
the degree in which it is contrary does it cease to exist. Moreover, the new custom effects
abrogation or derogation only if it is equipped with the legal requirements, e.g., that it
exist over a period of 30 years (can. 26).ccxxiii

1. A law abolishes a custom either explicitly through clauses of revocation or

implicitly through provisions that cannot be reconciled with the existing custom.ccxxiv
Thus, for example, a general law which has a clause: “nulla obstante consuetudine
contraria,” will abolish a general or universal custom opposed to that law.

- a particular law revokes either explicitly or implicitly particular customs which

are contrary to it;
- a particular custom revokes a particular contrary custom;
- a general law does not abrogate a particular custom unless it contains an express
provision to that effect, as in the case of a law containing a clause: “nulla obstante
consuetudine contraria.” Some authors seem to dispute the juridical effect on particular
customs of clauses such as, “non obstante consuetudine contraria” and “contrariis non
obstantibus quibuscumque,” attached to general laws;ccxxv
- a particular law cannot abolish, even within the territory subject to the law, a
 62

universal custom which has arisen in a diocese contrary to the law of a superior particular
legislator (e.g., provincial council) and which is in force in the entire province.ccxxvi
- a law, whether universal or particular, does not abrogate centenary or
immemorial customs, without express mention, except as provided in canon 5, §1. A law
must have an express abrogating or derogating clause in order to affect these customs.
Revoking clauses affect only past customs, unless they include also a reprobating clause
as the legislator is competent to legally prevent emergence of future customs.ccxxvii

TITLE III

GENERAL DECREES AND INSTRUCTIONS

1. The seventh principle guiding the revision of the Latin Code approved by the first
general assembly of the Synod of Bishops in October of 1967 stated that in renewing the
law attention should be paid to those elements which are most especially lacking in the
area of administrative recourses and administration of justice. To achieve this, “is it
necessary to clearly differentiate the various functions of ecclesiastical power, that is, the
legislative, administrative, and judicial functions.”ccxxviii This was, indeed, an important
task entrusted to the Code Commission of incorporating a clear distinction between the
three aspects of the power of governance into the new Code, and title III of Book I seems
to be its direct response to such a charge.

Title III of Book I is, therefore, a totally new entry in the 1983 Code and it deals with
general dispositions of ecclesiastical administration. And these general dispositions are
titled “general decrees.” Chiappetta explains that the term “decree” is generic and it
indicates a particular provision enacted by a legitimate authority. If the provision is made
by a legislative authority enacting juridic norms, there is a legislative decree. If it is
enacted by the one with administrative authority in applying the law, then it is an
administrative decree. If, finally, the provision emanates from a judicial authority, there
is a judicial decree (cfr. can. 1617).ccxxix

A legislative decree is necessarily general, because it is properly a law, which by its very
nature is universal. On the other hand, an administrative or executive decree can have
either general or particular value. The judicial decree is always is particular, because it is
directed to an individual person or to a group of persons.ccxxx

The decrees treated in title III of the Code are general decrees of a legislative or
administrative nature. The particular or singular decrees, which are necessarily of an
executive or administrative nature, are treated in title IV which deals with singular
administrative acts: namely, decrees, precepts and rescripts (privileges and
dispensations). Is it proper to consider the two different type of decrees, that is to say,
legislative and administrative decrees in the same title? Chiappetta says this approach is
justified by the fact that it deals with the general decrees even if they are clearly distinct
in nature.ccxxxi
 63

In his commentary on general decrees, M. Moodie points out that there is lack of
precision in the use of the term “general decree.” He says that the term may refer to
normative legislative act (a law) or to an executive (or administrative) act applying the
law. The Code Commission itself adverted to this problem when it stated that “the term
decree signifies both laws and administrative acts which provide for the execution of
laws.”ccxxxii This lack of clarity was the object of the Pontifical Council for the
Interpretation of Legislative Texts’ response to the question concerning the meaning of
the term “general decrees” used in canon 455, §1: Is the reference to “general decree” in
canon 455, §1 to general legislative decrees or also to general executive decrees? The
reply of the Pontifical Council was that the term as used in canon 455, §1 includes also
the general executory decrees regulated by canons 31-33.ccxxxiii Despite this observation,
the title III may be regarded a major contribution to the distinction between the different
aspects of the power of governance in the Church.

Canon 29

Notion of General Decree

General decrees, by which a competent legislator issues common

prescripts for a community capable of receiving law, are laws properly speaking
and are governed by the prescripts of the canons on laws.ccxxxiv

Commentary

1. The 1917 Code did not contain special Titles on Decrees, Instructions, and
Individual Administrative Acts. The Code Commission, because of the canonical
importance of these juridic acts, decided to include them in the new Code.ccxxxv The
current commentaries on the 1917 Code dealt with the notions of precept, decree, statute
and instruction within the treatise on law in general.ccxxxvi The Code Commission felt it
absolutely (omnino) necessary to define the notion of decree, precept and instruction.
Together with their definitions, their juridical value has been determined. It was felt that
clarity and juridical security was necessary in regard to these acts. The Code
Commission confirmed the need for a constant and certain terminology so that one may
recognize with certitude when there is a true law and when there is only an executory
act.ccxxxvii

1. In general, the term “decree” may denote the following: a) a proper law, e.g., the
decree Orientalium Ecclesiarum; b) an intermediate act between a general and particular
precept; c) sometimes a disciplinary decision of an Ordinary (can. 1744, §2: decree of
removal of a parish priest); or a judicial decision by a judge on a particular point or
special question pertaining to a case under discussion (can. 1506, §1: acceptance or
rejection of a petition); d) sometimes a general or particular response from Roman
Congregations.ccxxxviii

1. A decree may be legislative, administrative or judicial. When a provision from a

legislative authority prescribes juridic norms for a community it is a legislative decree. If
 64

it is an act of an administrative or executive authority competent to apply the law, it is an

administrative or executive decree. Finally, if it is an act of one who exercises judicial
power, it is a judicial decree (see can. 1617). While a legislative decree, being a law in
the proper sense of the word, is of a general character, an administrative or executive
decree can be either general or particular. But a judicial decree generally has particular
value since it is directed either to an individual or to a group of persons.ccxxxix Canon 29
deals with “general legislative decrees.”

1. In order to determine whether or not a decree has the force of law, one must
carefully examine each case with reference to the author, end, subject, etc. In the absence
of clear declaration on the nature of an act it is difficult to identify it without looking into
all these aspects.

In civil law, a decree is generally distinguished from a law insofar as it is issued either by
the administrative or jurisdictional power, but always for some particular case or
person.ccxl

1. General decrees enacted by different legislators and which have the force of law
are, for example: disciplinary decrees of ecumenical Councils, e.g., Vatican II,
Orientalium Ecclesiarum, 21 November 1964;ccxli decree Crescens matrimoniorum from
the Congregation for the Oriental Churches, 22 February 1967;ccxlii decrees of
Conferences of Bishops within the limits of their competency and in accordance with the
procedure as per canon 455; decrees of Particular Councils (regional, provincial) to be
drawn up by the council are not to be promulgated until they have been reviewed by the
Apostolic See; decrees of the diocesan bishop (see can. 391); synodal decrees (see can.
466).

1. Two important points should be kept in mind while trying to identify a certain act
of the legislator as a general decree: a) only a competent legislator can enact a general
decree, e.g., the Pope, ecumenical Council in union with the Pope; Synod of Bishops in
union with the Pope, Roman Congregations by mandate of the Pope, Episcopal
Conferences for a local church on matters determined in law, etc.; b) the decree should be
addressed to a community capable of receiving law, e.g., the universal Church, a local
church, a ritual Church sui iuris; an ecclesiastical province, a diocese, a religious
community and a monastery sui iuris, etc.

1. According to canon 135,§ 2, legislators below the Roman Pontiff may not
delegate their legislative power unless the law explicitly provides otherwise. Therefore,
unless there is explicit delegation from the Holy Father, the Roman dicasteries may not
issue general decrees. As a matter of fact, different Congregations have, in recent times,
enacted general decrees with the approval of the Holy Father, e.g., the decree from the
Pontifical Commission for the spiritual care of the Migrants and Travellers granting
special faculties to Chaplains and privileges to the faithful.ccxliii

1. A general decree differs from law in several aspects. (a) A law flows directly
from the legislator and this power, except in case of the supreme legislator, cannot be
 65

delegated (can. 135,§ 2). Whereas, a legislative decree can be enacted, in a particular
case, even by one who has executive power with due delegation and according to the
norms of law and conditions stipulated in the mandate (can. 30). (b) A law enjoys
stability by its very nature, while a legislative decree provides for a fluid or interim
situation which does not call for a definitive or permanent norm. (c) Similarly, a law is
an autonomous norm, but a legislative decree generally has a complementary role in
relation to an already existing law. The general decrees have a legislative character have
a particular application in the normative activity of conferences of bishops, which
nevertheless, can be enacted only on certain issues and according to the special procedure
provided in canon 455.ccxliv

1. Since general decrees are in fact laws, canons 7-22 are applicable in regard to
their promulgation, vacatio legis, retroactivity, interpretation, revocation, etc.

Canon 30

Person Competent to Issue General Decree

A person who possesses only executive power is not able to issue the
general decree mentioned in can. 29 unless, in particular cases, it has been
expressly granted to that person by a competent legislator according to the norm
of law and the conditions stated in the act of the grant have been observed.

Commentary

1. Canon 30 places limits on the power of those who have only executive power.
According to this canon, those who have only executive power may not enact general
decrees unless in particular cases they have been expressly authorized to do so by the
competent legislator. This authorization, furthermore, should be in accordance with the
law and the power granted must be exercised according to the conditions prescribed in
the authorization.

1. First, it is important to know who in the Church have the executive power. As a
rule, it may be said that those who have the ordinary proper power of governance can
exercise all three powers (legislative, executive and judicial). Thus, diocesan bishops and
those equivalent thereto, that is, those who are at the head of other communities of the
faithful: a territorial prelature (Prelate), a territorial abbacy (Abbot), a vicariate or
prefecture apostolic (Vicar or Prefect Apostolic) and a permanently established apostolic
administration (Apostolic Administrator) (cann. 368-371). All these enjoy the power of
governance in all its aspects.

1. Vicar General and Episcopal Vicar enjoy only ordinary executive power. They
enjoy the same executive power for placing administrative acts (e.g., dispensing) as does
the bishop, except those reserved by the bishop to himself, or which by law require a
special mandate of the bishop (can. 479). The Vicar General enjoys ordinary executive
power for the entire diocese or comparable territory; the Episcopal Vicar enjoys such
 66

power only for a determinate part of the territory, for the faithful of a particular rite, etc.
These, on their own, may not make laws nor issue general legislative decrees as
stipulated in canon 30.

1. A diocesan administrator enjoys the same governing power as does a diocesan

bishop (can. 427, §1). Nevertheless, since law says that, “When a see is vacant, nothing
is to be altered,” it seems that a diocesan administrator may be considered prevented from
enacting laws or general decrees (can. 428, §1). This seems to be one opinion.

1. The proviso mentioned in canon 30, “unless, in particular cases, it has been
expressly granted to that person by a competent legislator according to the norm of law”
seems applicable only to those persons or organs to which the supreme legislator has
granted such authorization. As we have already seen, canon 135, §2 states that those who
are below the Supreme Pontiff and have legislative power cannot delegate it, unless the
law explicitly provides otherwise. The proviso of canon 30 can be interpreted as an
exception implied in canon 135, §2. Would this then mean that a bishop can delegate his
legislative power to issue legislative decrees in his diocese in particular cases?
Chiappetta’s view seems to offer an affirmative response to this question.ccxlv But other
authors are not in agreement with this opinion. For example, M. Moodie commenting on
this canon says: “Since the code itself limits delegation of legislative authority to the
supreme authority of the Church, the competent legislative authority mentioned in the
canon would be the Roman Pontiff or an ecumenical council.”ccxlvi

Even when the authorization has been expressly granted by the legitimate authority to
enact general decrees in particular cases, this power should be exercised according to the
conditions prescribed in the act of authorization. For example, according to canon
133,§1, a delegate should exercise the power within limits of the mandate, and if one
exceeds such limits, the act performed is to be considered non-existent.

Canon 31

General Executory Decree

§1. Those who possess executive power are able to issue, within the limits
of their competence, general executory decrees, namely, those which more
precisely determine the methods to be observed in applying the law or which urge
the observance of laws.

§2. With respect to the promulgation and suspensive period (vacatio) of

the decrees mentioned in §1, the prescripts of can. 8 are to be observed.

Commentary

1. There is no precedence in the 1917 Code which could be compared to the notion
of general executory decree, except in the commentaries on the notion of “general
precepts.” Precept is either particular or general. Ordinarily, precept is particular and, in
 67

the new Code, this is defined within canon 49.

Unless stated to the contrary, general executory decrees do not introduce new legislative
norms but concern the methods to be observed in the application of the existing law or
the urging observance of the law. They are of an administrative and not of a legislative
nature and in this respect resemble singular precepts given to individuals (cann. 48-58).
Nevertheless, like laws, they must be honest, just, possible, useful and promulgated.

1. Canon 31 grants to those who enjoy executive power in the Church, e.g.,
Conferences of Bishops, Vicar General and Episcopal Vicar etc., the power to issue
general executory decrees within the limits of their mandate or competency. Thus, for
example, a Vicar General may decree the implementation of diocesan laws enacted by the
bishop. Although the Vicar General, for the entire diocese, and the Episcopal Vicar, for
the area of his pastoral ministry, enjoy ordinary executive power, there are certain matters
(as the issuing of decrees) which they should refer to the bishop in accordance with canon
480. This canon states that the Vicar General and the Episcopal Vicar must give a report
to the diocesan bishop concerning more important matters, and they are never to act
against the will and mind of the diocesan bishop.

1. The promulgation and suspension of its force (vacatio legis) of general executory
decrees should be done in accordance with canon 8. Accordingly, general executory
decrees of the Holy See must be promulgated in the Acta Apostolicae Sedis, unless
another mode of promulgation is chosen. A three month suspension of the laws from the
date affixed on the number of the Acta in which the decree is published is necessary. A
longer or shorter period of suspension (vacatio legis) may be indicated by the Holy See in
the decree. Where diocesan (or religious) general executory decrees are concerned, the
person issuing the decree may choose the mode of promulgation, e.g., diocesan paper or
the news bulletin of the religious institute. Generally, the decree binds one month from
the date of promulgation, unless otherwise specified in the decree itself (can. 8, §2).

1. The original wording of Title III was: General Decrees and Precepts and
Instructions. However, in the 1981 Relatio the title was changed to General Decrees and
Instructions. It was pointed out to the Code Commission that the former title did not
correspond to its content because there were no canons on general precepts. With a
simple reminder that a “precept” is a kind of “decree,” the title was changed without any
provision for the notion of general precepts.ccxlvii From the wording of the canon it seems
that, at least the Code Commission identified the notion of general precept with general
decree. A different group of canons (cann. 48-58) deals with singular or particular
precepts.
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Canon 32

Subject of Decrees

General executory decrees oblige those who are bound by the laws whose
method of application the same decrees determine or whose observance they urge.

Commentary

1. This canon determines the subjects of general executory decrees as those who are
bound by the laws. Indirectly it also identifies the authors of such decrees. General
executory decrees presuppose certain laws which they apply or whose observance they
urge. In other words, they bind those to whom the law is addressed. For example, the
entire Church will be bound by the general executory decrees which define the manner of
application or urge the observance of universal laws. Since universal laws can be enacted
only by the supreme legislator or by an ecumenical council, the authority which generally
executes their laws for the entire Church are the Roman dicasteries. Similarly, the
diocesan bishop ordinarily legislates either personally or through the synod for the entire
diocese. Since Vicars General and Episcopal Vicars represent the diocesan bishop within
the diocese, they can, within the limits of their competence, issue general executory
decrees for the diocese in respect to diocesan laws. The Ordinaries of clerical religious
institutes or societies of apostolic life of pontifical right (can. 134, §1) have the power to
issue general executory decrees in respect to laws of their proper Chapters (can. 631).
Can the same Ordinaries (namely Vicars General and Episcopal Vicars, Major Superiors),
“within the limits of their competence,” issue general executory decrees also in respect to
universal laws of the Church? Chiappetta maintains that this possibility is clearly
admitted in the canons of the Code, that is, canons 31-32 and canons 392, and 592,§2,
which oblige the diocesan bishop to promote common discipline of the entire Church
and, therefore, to urge the observance of all ecclesiastical laws (can. 392), and the
Moderators of the institutes of consecrated life and of societies of apostolic life “to
promote knowledge of the documents of the Holy See which affect members entrusted to
them and be concerned about their observance of them.” (Cfr. cann. 592, §2 and
732).ccxlviii

Canon 33

General Executory Decrees Contrary to Law

§1. General executory decrees, even if they are issued in directories or in

documents of another name, do not derogate from laws, and their prescripts which
are contrary to laws lack all force.

Revocation and Cessation of General Executory Decrees

§2. Such decrees cease to have force by explicit or implicit revocation

 69

made by competent authority as well as by cessation of the law for whose

execution they were given. They do not, however, cease when the authority of the
one who established them expires unless the contrary is expressly provided.

Commentary

1. Derogation implies partial revocation of a law. This is generally the function of

the legislator, his superior, successor, or delegate. As we have already seen, general
executory decrees are of their nature administrative and not legislative. Besides
legislators, these decrees may be issued by those who enjoy executive power. Therefore,
because of the very nature of executive decrees, they cannot be used in any way to repeal
laws. Any conflict between a general executory decree and a law must be resolved in
favour of the latter.

1. Canon 33, §1 speaks of Directories in which general executory decrees are

sometimes promulgated. These are a new feature in the new Code. They indicate a
collection of an entire series of general executory decrees concerning a determined matter
or issue. Examples of these are: Directory Concerning Ecumenical Matters, Part One,
SPUC, Ad totam ecclesiam, 14 May 1967 and Part Two, Spiritus Domini, 16 April 1970;
Directory on the Pastoral Ministry of Bishops, Congregation for Bishops, 22 February
1973; Directory on Children's Masses, Pueros baptizatos, Congregation for Divine
Worship, 1 November 1973; Ecumenical Directory of 1993, etc.

1. Paragraph 2 of canon 33 provides following principles concerning cessation of a

general executory decree:

a) A general executory decree can cease ab intrinseco by the cessation of the

purpose or end of the decree, as in law. If an Ordinary has ordered a community to pray
for the recovery of a certain person who is seriously ill and that person recovers or dies,
the decree ipso facto ceases.

b) It may also cease by the lapse of time for which the executory general decree is
given, e.g., a decree indicating fast for the time of a special pilgrimage in the diocese, etc.

c) It can cease ab extrinseco, that is, by revocation by the competent authority,

i.e., by the one who gave the decree, by the superior (say bishop in relation to Vicar
General), by the successor, or delegate; revocation is explicit, e.g., “I hereby revoke the
general executory decree by which I had prescribed...”; it is implicit when the competent
authority issues directives which run counter to the decree in question, or completely
reorders its material, etc.

d) General executory decree does not cease with the cessation from office of the
one who issued it, i.e., by the resolution of one’s right as per canon 33, §2. In this they
resemble laws. However, if the one issuing the decree expressly states that the decree
would be effective only during his time in office, or “given at his pleasure,” the decree
would cease at his cessation from office, unless the superior or successor of the original
 70

executive decree orders its continuance.

e) In doubt about the revocation of a general executory decree, it seems that, by

analogy to doubtful revocation of law as per canon 21, the presumption is in favour of the
continued binding force of the decree.

Canon 34

Instructions

§1. Instructions clarify the prescripts of laws and elaborate on and

determine the methods to be observed in fulfilling them. They are given for the
use of those whose duty it is to see that laws are executed and oblige them in the
execution of the laws. Those who possess executive power legitimately issue
such instructions within the limits of their competence.

§2. The ordinances of instructions do not derogate from laws. If these

ordinances cannot be reconciled with the prescripts of laws, they lack all force.

§3. Instructions cease to have force not only by explicit or implicit

revocation of the competent authority who issued them or of the superior of that
authority but also by the cessation of the law for whose clarification or execution
they were given.

Commentary

1. The word “instruction,” a new term in the present Code, can have several
meanings. Sometimes it may be merely directive and at other times it may be preceptive
to the extent it applies the law to particular cases, or explains the form and reason
according to which the law should be observed. It may happen in the meantime, that
certain points, especially secondary, are authoritatively defined and proposed through an
instruction. Thus, for example, on 7 June 1867, the Holy Office issued an instruction, by
which the notion of quasi-domicile was defined in stricter terms than it was done by
distinguished canonical authors.ccxlix

Not infrequently, instructions have the force of universal or particular law, e.g., the death
of the previous spouse should be proved according to the Instructions of the Holy Office
given on 13 May 1868 and 29 August 1890. The same Congregation issued an
Instruction to Oriental Ordinaries on 20 June 1883, on matrimonial cases, “which should
be accurately executed by all those to whom it is addressed.”ccl Therefore, the notion of
“instruction,” although not quite clear at this time, has historical roots in the activities of
the Roman Curia.

1. Canon 34 defines the notion of an instruction. An instruction is a common form

of pronouncement, especially by the Roman Curia. It may contain a doctrinal
explanation, a set of rules, directive norms, recommendations, admonition, etc. Even
 71

though, strictly speaking, an instruction does not have the force of law,ccli when issued
with the forma specifica approval of the Holy Father, it can have legislative force.

The most familiar example of an instruction with obvious legislative force is Provida
Mater Ecclesia (Procedural Rules for Marriage Nullity Cases), issued by the Sacred
Congregation for the Sacraments, on 15 August 1936. This instruction, indeed, had the
force of law since 1936 in the processing of marriage nullity cases, although the Code of
1917 took precedence if a conflict arose between the latter and Provida Mater.

1. Concerning the authority of the Roman dicasteries to issue general decrees and
instruction, Pope Benedict XV, in his motu proprio Cum iuris canonici, 15 September
1917, said:

The Sacred Roman Congregations shall hereafter enact no new General

Decrees, unless some grave necessity of the Universal Church require it.
Their ordinary function in this matter will therefore be not only to see that
the prescripts of the Code are religiously observed, but also to issue
Instructions as need arises, whereby those prescripts may be more fully
explained and appropriately enforced. These documents are to be drawn
up in such a manner that they shall not only be in reality explanations of
and complements to the canons, but also that they may be clearly seen to
be such; and therefore it will be very helpful to cite the canons themselves
in the text of these documents.cclii

The purpose of these acts is to interpret and explain the law that is clear, not dubious;
they also complete constitutive law.

1. In recent years, especially after Vatican Council II, instructions have appeared
with greater frequency. Among the most publicised were the three instructions
implementing the Conciliar Constitution on the Liturgy, Sacrosanctum Concilium of 4
December 1963. These instructions were: Inter oecumenici concilii, 26 September 1964;
Tres abhinc annos, 4 May 1967; Liturgicae instaurationes, 5 September 1970. The first
two instructions originated from the Congregation for Divine Worship. On 15 August
1997, the Instruction on certain Questions Regarding the Collaboration of the Lay
Faithful in the Ministry of Priests signed by six Congregations and two Pontifical
Councils was issued. This was approved by the Holy Father in forma specifica.ccliii

1. Instructions may be issued by those enjoying at least executive power, as

dicasteries of the Roman Curia (can. 360), Vicar General, Episcopal Vicar, etc. Since it is
often difficult to distinguish between a general executive decree and an instruction, it is
hoped that those who issue them will clearly specify which general administrative act he
has in mind.

1. If the instruction is published as a complement to the law, the following should be

noted: a) with the cessation of law, the instruction also ceases; b) an instruction cannot
derogate from the law; therefore, in case of doubt or discrepancy the law in question
 72

prevails.

According to canon 34, §3, besides intrinsic cessation (when law ceases), instruction
ceases to have force when the competent authority, that is, the one who issued it, his
superior, successor or delegate revokes it.

TITLE IV

SINGULAR ADMINISTRATIVE ACTS

CHAPTER I

COMMON NORMS ccliv

1. As the legal adage goes, it is not the function of law to define matters. Therefore,
even though the very notion of “administrative law” is relatively new in the legal
tradition of the Church, the new Code, while clearly identifying the essential elements of
an administrative act, resists providing its definition. Nevertheless, it presents a
systematic structure of the concepts and principles applicable to singular administrative
acts. Taking into consideration all these elements, Chiappetta defines a singular
administrative act as: “An act of governance posited by a competent authority in the
exercise of his functions, and directed to an individual or even to a community in a
concrete and particular case.”cclv It is the characteristic of “particularity,” Chiappetta says,
which properly distinguishes singular administrative acts considered in Title IV from
general administrative acts of Title III which are universal or general in character.cclvi

1. An administrative act, in its form, is either a decree or a rescript. A decree is

issued usually at the initiative of the authority granting it (can. 48), while a rescript
presupposes a previous request or petition from the recipient (can. 59,§1). A third form,
namely a precept, which normally orders a determined person(s) to do or omit something,
especially concerning the urging of the observance of a law (can. 49) has been absorbed
into the notion of singular decree. A decree is either decisional or provisional in nature,
that is, it conveys a decision (e.g., resolution of a controversy) or a provision (e.g.,
authorization, permission, appointment to an office, etc.). A precept, as a singular decree,
imposes an obligation or prohibition on a person(s), while a rescript concerns a
concession of a privilege, dispensation, faculty or favour (can. 59,§1).cclvii

1. Since the new Code deals with Singular Administrative Acts as a new topic,
general norms are proposed for their proper understanding and implementation. Thus
canon 35 presents a general notion of a singular administrative act. This does not have a
parallel in the 1917 Code.

A singular administrative act is directed to an individual person and in a particular case.

Individual person can mean one person or several persons as a group, e.g., a family,
parish, an association of the faithful, or a particular group of persons. Thus a precept or a
 73

singular decree, or a rescript may be directed to an individual or a group of persons as a

moral or juridic person.

Canon 35

Authority Competent to Issue a Singular Administrative Act

A singular administrative act, whether it is a decree, a precept, or a

rescript, can issued by one who possesses executive power within the limits of
that person’s competence, without prejudice to the prescript of can. 76, §1.cclviii

Commentary

1. In the system of ecclesial law, unlike civil law, a legislator (e.g., the Roman
Pontiff, a diocesan bishop) is empowered to issue singular administrative acts as one
having at the same time executive power. This is possible because, in the Church, all
three powers, namely legislative, executive and judicial, are vested in the legislator and
they are not distinguishable in them. However, an administrative act posited by the
legislator is not a legislative act although it emanates from a legislator. It is an
administrative act of a legislator qua administrator.

1. But canon 35 states that one who enjoys executive power may issue singular
administrative acts. Thus, for example a Vicar General and an Episcopal Vicar, a
conference of bishops, etc., can issue a particular decree, a particular precept or a rescript
within the sphere of their competence. But canon 76,§1, which deals with privileges,
appears to be excluded from this general principle. It stipulates that a privilege “can be
granted by the legislator as well as by an executive authority to whom the legislator has
granted this power.” It seems, therefore, that although a person with executive power,
e.g. a Vicar General or an Episcopal Vicar, may issue other singular administrative acts,
that person would require a special delegation to grant a privilege by way of rescript. A
privilege in the strict sense is a particular favourable rule (ius singulare) given to
determined person(s) or places or things contrary to or outside the law and, therefore,
implying an act which derogates from a law. For this reason canon 76, §1 seems to
restrict the power of granting a privilege to the legislator, and those with executive
authority can do so only when there is legitimate delegation.cclix Nevertheless, this does
not change the nature of a privilege identified by law as a sub-species of singular
administrative act placed in virtue of executive power.

1. A singular administrative act differs from a law in several aspects:

i) a law is necessarily directed to a community capable of receiving law; whereas

a singular administrative act may be directed to an individual or to a group of persons not
necessarily a community;

ii) a law must be promulgated, whereas a singular administrative act does not
 74

need promulgation;

iii) a law is by its very nature perpetual; singular administrative act is not
necessarily perpetual;

iv) a singular administrative act needs to be proved, while a law does not need to
be proved;

v) a singular administrative act may be issued by one who has executive authority,
whereas a law can be enacted only by a legislator;

vi) a singular administrative act is personal and follows the person(s) to whom it
is directed while a law is not always personal.cclx

Canon 36

Interpretation of an Singular Administrative Act

§1. An administrative act must be understood according to the proper

meaning of the words and the common manner of speaking. In a case of doubt,
those which refer to litigation, pertain to the threatening or inflicting penalties,
restrict the rights of a person, injure the acquired rights of others, or are contrary
to a law which benefits private persons are subject to a strict interpretation; all
others are subject to a broad interpretation.

§2. An administrative act must not be extended to other cases besides those
expressed.cclxi Ҥ4. Not only a dispensation, but also the very power to dispense granted for a
particular case, is subject to a strict interpretation.”

Commentary

1. Canons 17 and 18 present the basic principles for the interpretation of

ecclesiastical laws. The first principle states that if the words of the law in the
text and context are clear, they are the sole norm of interpretation (can. 17). The
“proper” or true meaning of the words is to be considered, whether it be the
ordinary meaning or a technical one. Where a word has a technical juridical
meaning defined in the Code, there is a general presumption that the word, in any
canon of the Code is used in that sense.cclxii Accordingly, if the words of a singular
administrative act are clear according to their “proper meaning” and “common
usage” they are the sole norm of interpretation. Canon 36,§1 does not speak of
their “context” as does canon 17.

1. In the interpretation of a canon, when the text remains obscure or doubtful, one
may have recourse to other norms of interpretation. These are: first, parallel passages of
the Code; that is, where the Code treats of the same matter under another aspect;
secondly, the purpose and circumstances of the law; thirdly, the mind or intention of the
legislator. However, while interpreting a singular administrative act, one must examine
 75

the “proper meaning” and “common usage” of words of the act because such an act is
normally directed to ordinary persons and for concrete situations. Therefore, the canon
implies that the singular administrative act must be in the first place expressed in simple
language.

1. However, if doubt remains canon 36, §1 lists certain kinds of administrative acts
which are subject to strict interpretation, namely, an interpretation which gives to the
words a minimum of extension, while still respecting their meaning and never attributing
to them a meaning contrary to the intention of the person issuing the act. Strict
interpretation narrows rather than enlarges the application of a law or of an administrative
act.

1. When there is doubt, therefore, the following singular administrative acts must be
subject to strict interpretation:

a) those concerning litigation, e.g., a decree is handed down to settle a dispute

between a bishop and his Vicar General;
b) those threatening or imposing penalties, e.g., a penal precept threatening a
priest with suspension or a decree imposing such a penalty;

c) those limiting the rights of a person, e.g., a vetitum placed on the party's right to
remarry after a declaration of nullity;

d) those infringing on acquired rights, e.g., faculties and powers attached to an

office;

e) those contravening the law in the interests of private parties, e.g., a

dispensation from praying the breviary during illness or study (cf. also can. 92).

1. Apart from the instances listed (taxative) above, all other administrative acts may
be interpreted broadly. Interpretation is said to be broad when the words of the
administrative act, while left with their proper meaning, are given the maximum of
extension. These principles are reiterated in canon 77 (privileges) and in canon 92
(dispensations) because they contain favours which constitute an exception to the law in
favour of a private person.cclxiii

When an administrative act is issued expressly for a particular case, it should not be
extended beyond that case.cclxiv This presupposes that the wording is clear and the act is
applied only to the case implied in it. If one applies an administrative act beyond the case
or cases specified, such an act would be in violation of the will of the person issuing it
and, therefore, it would be invalid. For example, according to canon 87 the bishop grants
a priest the faculty to dispense from a day of penance established by him for his diocese
(can. 1244, §2) a particular family in determinate circumstances, say on the occasion of a
wedding. The priest may not use the same faculty to dispense other families in similar
circumstances. However, canon 36 does not prohibit the use of the principle of analogy
established in canon 19 in the interpretation of singular administrative acts.
 76

Canon 37

Form for Effecting and Executing Administrative Acts

An administrative act which regards the external forum must be put in

writing. Furthermore, if it is given in commissorial form, the act of its execution
must be put in writing.cclxv

Commentary

1. Canon 37 concerns one of the essential elements of an administrative act, i.e., the
manner of effecting and executing an administrative act. The canon stipulates that both
effecting and executing, if and when necessary, an administrative act concerning the
external forum should be in writing. This implies that administrative acts may concern
also matters of internal forum. The internal forum is either sacramental, i.e., within the
sacrament of Penance, or extra-sacramental, i.e., outside the sacrament of Penance but
still concerned with the private good of the faithful. If an administrative act, e.g.,
oraculum vivae vocis, is directed to this forum, it does not necessarily have to be in
writing. Oraculum vivae vocis has the same value in the internal forum as a rescript. But
an administrative act conveyed orally does not carry any weight in the external forum
unless it is authenticated through an official document by competent authority.cclxvi

1. The form in which certain administrative acts are issued may be: forma gratiosa,
granting a favour directly to the petitioner without the need of intervening execution;
forma commissoria, granting a favour to the petitioner through an intervening executor.
Canon 37 requires that an administrative act in forma commissoria be executed in
writing. Thus, for example, the conferral of a canonical office should be carried out in
writing; and if this administrative act is issued in forma commissoria, that is, through an
executor, it should be executed in writing. The observance of this formality (in writing)
is required not for its validity (in light of can. 10), but for liceity only.cclxvii This
requirement is a wise one, as it can afford easy proof of the act should it be challenged.

1. The requirement of “written form” for singular administrative acts as prescribed

in canon 37 is a general norm. The Code contains several canons which require this form
for administrative acts. In some of these canons this requirement is obviously not for the
validity of the act concerned. Thus for example, canon 973 reads: “The faculty to hear
confessions habitually is to be granted in writing.”cclxviii If this faculty is granted to a
priest orally such a concession would still be valid even though it has not been granted in
writing as required by the canon because the law does not contain any clause to indicate
the contrary. Whereas in certain other canons there are explicit or equivalent clauses
which could lead one to interpret the requirement of “written form” necessary for the
validity of the act involved. For example, canon 186 reads: “Loss of office by the lapse
of a predetermined time or by reaching a certain age takes effect only from the moment
when the competent authority communicates it in writing.”cclxix In canons of this kind,
Chiappetta maintains, acts contrary to the requirement stipulated therein are to be
 77

considered invalid and as such can be impugned according to the norm of canon 1737 for
violation of the norms of canons 37, 51, 59, etc.cclxx

More will be said concerning the execution of administrative acts when we deal with
rescripts.

Canon 38

An Administrative Act Issued Motu proprio

An administrative act, even if it is a rescript given motu proprio, lacks

effect insofar as it injures the acquired right of another or is contrary to a law or
approved custom, unless the competent authority has expressly added a
derogating clause.cclxxi

Commentary

1. A rescript given “motu proprio” means that the superior concedes the favour
requested purely out of generosity, just as if he had not been asked for it. Canon 46 of the
1917 Code had stated that rescripts, including those granted motu proprio, given to a
person incapable by common law of receiving the favour contained in it, as well as
rescripts issued contrary to a lawful local custom or a particular law or the already
acquired right of another person, are ineffective, unless an express derogatory clause is
appended to the rescript.cclxxii

1. The principle contained in canon 46 of the 1917 Code is now applied to singular
administrative acts as a whole. Thus, a singular administrative act is ineffectual in the
following situations, namely, when:

- it infringes upon acquired rights (cann. 4 and 1196);

- it is contrary to law, universal or particular, including general legislative decree;
- it is contrary to an approved custom (can. 23);
- unless the competent authority, aware of the conflict between different
legislative acts, has added an explicit clause derogating from the law.

1. What this stipulation of canon 38 implies is that the person who is competent to
issue an administrative act may not be in a position to derogate (partial abrogation) from
the law, nor to act contrary to acquired rights which are governed by common law.
Therefore, only those who have legislative authority or those who are duly delegated
according to the norms of law (can. 30) can contravene a given law and, if they wish to
do so, they must explicitly express their intention. A legislator may not be aware of all
particular laws, acquired rights and customs which are protected by common law.
Therefore, in order to safeguard the effectiveness of his administrative act he will have to
explicitly derogate from the law if that act goes counter to particular laws, acquired rights
or legitimate customs. Even the clause “motu proprio” does not protect an administrative
act against its ineffectiveness where the competent authority has failed to add a
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derogatory clause.

Canon 39

Value of Conditions Attached to Administrative Acts

Conditions in an administrative acts are considered added for validity only

when they are expressed by the particles if (si), unless (nisi), or provided that
(dummodo).cclxxiii

Commentary

1. This canon is equivalent to canon 39 of the 1917 Code. Canon 39 of CIC 17

spoke of conditions appended to rescripts. It stated that conditions attached to rescripts
are essential to their validity only when they are expressed by the particles, “if,”
“provided that,” or others of the same meaning.

1. A condition is a circumstance so united with an act that the act depends on it. In a
broader sense, as used in this canon, condition is equivalent to a “clause.” The clause
may be merely accidental or preceptive, but in that case failure to comply with its
provision would make the use of rescript unlawful, but not invalid.cclxxiv

1. Failure to observe the essential conditions expressed by “if,” “unless,” and

“provided that,” entails invalidity of the administrative act in question.cclxxv For example,
a priest is given the faculty to dispense from an impediment or to remit a penalty,
“provided that” he make use of it only in the internal forum. If this condition is not
followed, the dispensation is invalid. In the 1917 Code, canon 39 mentioned that
particles equivalent to “if,” “provided that” could express essential conditions. The
revised canon (39) leaves out this provision because of its uncertain implications and
seems to imply that essential conditions are expressed only by the particles “if,” “unless”
and “provided that.” Commentators have maintained that ablative absolute is not a
“particle”; its effect as a condition for validity is disputed.cclxxvi It appears, that the revised
canon seems to have a taxative list of the particles which determine conditions essential
to an act’s validity. Note the phrase in CCEO c. 1516.

Canon 40

Invalid Execution of an Administrative Act

The executor of any administrative act invalidly carries out his or her
function before receiving the relevant letter and verifying its authenticity and
integrity, unless previous notice of the letter had been communicated to the
executor by the authority of the one who issued the act.cclxxvii

Commentary
 79

1. Canon 53 of the 1917 Code had an the identical norm on execution of a “rescript.”
But now it is applied to all singular administrative acts through canon 40.

Practical principles to be drawn from this canon are:

i) the executor of an administrative act acts as a delegate of the competent

superior; therefore he/she cannot act validly unless he/she has received the mandate to do
so from the superior or from some qualified official on his behalf, namely, ex officio,
auctoritate Sanctae Sedis;

ii) if the executor acts invalidly before receiving the administrative act that is to
be executed or authentic information regarding it, he/she is required to proceed to a new
execution of it when he or she receives it;

iii) even the determination of the authenticity and integrity of the administrative
act is required for its valid execution. The executor must dispel all doubts regarding the
authenticity of the signature and the seal and every suspicion regarding the text;

iv) previous authoritative information may be sought if the circumstances warrant

it; and it can be sent by telephone, telegraph (where this mode of communication may
still be the quickest means of contact), e-mail, etc;

v) it is probable that the information given to the bishop or the Vicar General by
an official of the diocesan curia who has received and inspected a particular
administrative act (e.g., a decree or a rescript) suffices for valid execution;

vi) this canon applies only to those administrative acts which are given in forma
commissoria and not to those in forma gratiosa. A rescript, for example, issued in forma
gratiosa can be enjoyed by the beneficiary as soon as he/she receives the notification that
the rescript has been issued, even though the information comes to the person through a
private message.cclxxviii

1. For valid execution of an administrative act issued in forma commissoria, the

following procedure should be observed: the executor should have the autographed
document containing the administrative act so that he/she may verify its authenticity from
the form, stamp, date and signature, and its integrity from any interpolations, errors,
erasure, etc., which may raise suspicion. If an executor proceeds with the execution of a
decree or a rescript without establishing the authenticity and integrity of the document,
the execution will be invalid. Furthermore, it is not sufficient to have the information
concerning the concession or mailing of the document from a private person. The
message or the information should be conveyed to the executor by the authority signing
the document so that the decree or the rescript may be validly executed before the
document containing the same has actually reached the executor. This is applicable to all
rescripts, both pontifical and those issued by other authorities of lower rank.cclxxix
Chiappetta says that to be in possession of the document or certain and official
notification is necessary for the valid execution of an administrative act. Thus, for
 80

example, the local Ordinary has petitioned for a dispensation from a matrimonial
impediment reserved to the Holy See and the dispensation has been granted in
commissorial form. The Ordinary cannot proceed with the execution of the rescript
without the document or official notification. If he goes ahead with the execution of the
rescript before receiving either the document or official notification, his act of execution
would be invalid and so too the marriage.cclxxx Another case scenario could be this: A
member of an institute of consecrated life, because of his future apostolic work or the
territory in which he resides, might request a dispensation from canon 1015, §2 (a bishop
cannot ordain licitly a subject of an Eastern rite without an apostolic indult) so that he can
be ordained by a bishop of a different ritual Church. The requested rescript is late in
coming, so his superior telephones the appropriate Roman dicastery and determines that
the indult was in fact granted but has been delayed in the mail. This is sufficient for the
bishop to go ahead and licitly confer the ordination of the candidate belonging to a
different Church sui iuris.cclxxxi This flexibility is necessary in real situations of pastoral
needs.

Canon 41

Limitations on the Executor’s Function

The executor of an administrative act to whom is entrusted merely the task

of execution cannot refuse the execution of this act unless it clearly appears that
the act itself is null and cannot be upheld for another grave cause, or the
conditions attached to the administrative act itself have not been fulfilled.
Nevertheless, if the execution of the administrative act seems inopportune due to
the circumstances of persons or place, the executor is to suspend the execution. In
such cases the executor is to inform immediately the authority who issued the
act.cclxxxii

Commentary

1. Canon 54 of the 1917 Code is the basis of canon 41. The former concerned only a
rescript and stated that if, in a rescript, the mere task of execution is committed to a
person, the execution cannot be refused, unless it is evident that the rescript is void in
consequence of subreption or obreption, or there are conditions in the rescript which the
executor knows have not been complied with, or the petitioner is so unworthy, in the
estimation of the executor, that to grant the favour would prove offensive to others. In
the last case, the executor shall at once notify the grantor and meanwhile withhold
execution.

1. The first paragraph of canon 54 of the 1917 Code has been substantially adopted
into canon 41 of the new Code; whereas paragraph 2 of the former has been left out in the
revised canon. That paragraph concerned the execution of a rescript which depended on
the discretion of the executor. Thus a distinction was made between a necessary executor
and a voluntary executor:
 81

- necessary executor is one who acts merely as an agent of the person issuing the
administrative act. He/she does not have the power to verify the exactness of motives in
the petition. In other words, the necessary executor (executor merus) is concerned only
with the actual execution of the rescript and exercises no jurisdiction. Having received
the rescript and recognized its authenticity and integrity, he/she must, without further
inquiry, execute it.cclxxxiii

- voluntary (free) executor or mixed executor is one whose task it is to take

cognizance of the cause and grant the favour in virtue of the jurisdiction delegated by the
one who issues the administrative act. Even the voluntary executor cannot grant or refuse
the favour ad libitum, but the granting or refusing it must be based on the executor’s
conscientious judgment after a careful examination of the truth of the petition.cclxxxiv

1. Whether an executor is necessary or voluntary should be gathered from the words

of the document containing the decree or rescript. An executor is necessary if he/she has
been ordered to execute even though the clause “at your discretion or according to your
conscience” might be added; e.g., “We order that, if the request is true, you dispense,” or
“The Congregation commits to the Ordinary that, if matters presented in the petition are
true, the dispensation may be kindly granted.” An executor is voluntary if the mandate
contains the clause, “with necessary and opportune faculties.”cclxxxv

1. Canon 41 foresees 3 cases where a necessary executor can refuse execution of an

administrative act:

a) it is manifestly apparent that the act is null, for example, because it has been
granted by someone who has no executive power (can. 35), or lacks the necessary
signatures and seal, has been tampered with, altered, erased, or, in the case of rescripts,
obreption (the statement of falsehood) or subreption (the withholding of the truth) in the
petition has invalidated the grant as per canon 63, §§1 and 2;

b) it cannot be sustained for some grave reason;

c) the conditions attached to the administrative act have not been fulfilled, as, for
example, required by canon 39. If a condition specified in the act is for liceity only and it
has not been fulfilled, the executor could still refuse the execution. However, in this
latter case, the execution would still be valid if carried out.

1. The cases mentioned above relate to a definitive refusal of execution of an

administrative act. Canon 41 also states that the executor is to desist from the execution
if the execution of the act would appear to be inopportune, by reason of the circumstances
of person or place. As we have seen earlier, canon 54, §1 of the 1917 Code had stated
that, if, in the estimation of the executor, the petitioner is so unworthy that to grant the
favour to that person would prove offensive to others, the executor shall at once notify
the grantor and meanwhile withhold execution. Thus, for example, if the person, to
whom a rescript is granted in forma commissoria, enjoys such a poor reputation in the
community that the concession of a favour to him/her would be a source of scandal to
 82

others and a cause to smear the name of the Church.

In determining whether the execution of an administrative act would be inopportune by

reason of circumstances of person or place, no specific rule is available. The executor, in
forming his/her judgment, is left to a prudent consideration of the status and the
reputation of the petitioner, the local condition and the type of favour granted.cclxxxvi If the
executor, according to his/her prudent judgment, thinks it inopportune to execute the
administrative act, he/she is to desist (even interrupt if the process has begun) from
executing the act and immediately inform the person who issued it.
XCanon 42

Invalid Execution of an Administrative Act

The executor of an administrative act must proceed according to the norm

of the mandate. If, however, the executor did not fulfill the essential conditions
attached to the relevant letter and did not observe the substantial form of
proceeding, the execution is invalid.cclxxxvii

Commentary

1. Canon 55 of the 1917 Code stipulated that the executor must proceed according to
the norm of the mandate, and the execution is invalid unless he/she fulfills the essential
conditions expressed in the rescript and follows the substantial form of the procedure
required. Canon 42 of the new Code is substantially the same. The only difference is
that the former concerned execution of a rescript while the latter extends it to all
administrative acts.

1. The following practical points should be kept in mind:

i) The norms of the mandate may vary according to the type of executor employed
(necessary or voluntary), and according to the extent of the decree or rescript; neither
more or less shall be granted than is expressed in it. But it is presumed that all that is
needed to execute the act is included in the mandate ( can. 138).cclxxxviii

ii) Those conditions are to be judged essential which are expressed by the
particles, “if,” “unless,” “provided that,” according to canon 39. Other conditions may be
required for the liceity of the execution.

iii) The forum for which the rescript was issued affects the substantial form of
procedure; thus, a rescript granted for the internal forum has no juridical value in the
external forum.

iv) If no substantial form of procedure is stipulated in the decree or rescript, the

executor should proceed according to the general norms governing the validity and liceity
of acts, e.g., regarding the conferral of ecclesiastical offices (cann. 146-156), the
execution of sentences (cann. 1650-1655), etc.
 83

v) Special attention is to be paid to rescripts emanating from the Apostolic

Penitentiary and to the meaning of clauses appended to them. The clause, audita prius
sacramentali confessione, requires that the sacramental confession be heard, but the
condition is fulfilled even if the confession be sacrilegious or if absolution be deferred.
The fulfilment of the clause providing for the burning of the rescript is not required for
the validity of the execution.cclxxxix

Canon 43

Substitution of Executor

The executor of an administrative act can, according to his or her prudent

judgment, substitute another as executor unless substitution has been forbidden,
the executor has been chosen for personal qualifications, or a substitute has been
predetermined. In these cases, however, the executor may entrust the preparatory
acts to another.ccxc

Commentary

1. Canon 57 of the 1917 Code is equivalent to canon 43 of the new Code. Both
norms are substantially identical.

Substitution has a wider meaning than delegation, and includes not only acts of
jurisdiction but also merely ministerial acts. Thus the substitute may be charged with the
granting of the favour or merely the execution, or with the performance of preparatory
acts, the review of the authenticity and integrity of the document, the examination of the
case, the hearing of witnesses and of the parties, etc. The ancient discipline allowed the
use of a substitute only for the preparatory acts.

1. The executor of an administrative act can prudently commit his/her charge to a

substitute except when, a) substitution is forbidden in the mandate itself, because of the
nature of the act; b) the executor is chosen for personal qualities, e.g., as a canon lawyer,
theologian, confessor, etc; c) a specific person has been already designated as a substitute.

Acts preparatory to execution may be committed to another person. For example, a

bishop-executor may ask his Vicar General to make inquiries about the fulfilment of
conditions set down in the administrative act, the worthiness of the grantee of a favour,
information on the presence of the cause for granting a favour, etc.ccxci

An executor is to be considered chosen on account of personal qualifications when an

administrative act expressly states that the person must personally carry it into effect, or
when the charge is committed and recommended to him/her as of extreme difficulty and
importance. Furthermore, an executor charged with the personal execution of a rescript
acts unlawfully and invalidly if he/she appoints another as substitute for the execution
itself.
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1. If the execution of an administrative act is of a voluntary nature and involves the

exercise of executive and/or judicial power of governance, then, in choosing a substitute,
the executor must also keep the following canons in mind, since he is a delegate:

a) Canon 135,§3: Judicial power, which is possessed by judges and judicial

colleges, is to be exercised in the manner prescribed by law, and it cannot be delegated
except for the performance of acts preparatory to some decree or judgment.

b) Canon 137,§2: Executive power delegated by the Apostolic See can be

subdelegated, either for an individual case or for all cases, unless the delegation was
deliberately given to the individual alone, or unless subdelegation was expressly
prohibited.

c) Canon 137,§3: Executive power delegated by another authority having ordinary

power, if delegated for all cases, can be subdelegated only for individual cases; if
delegated for a determinate act or acts, it cannot be subdelegated, except by the express
grant of the person delegating.

d) Canon 137,§4: No subdelegated power can again be subdelegated, unless this

was expressly granted by the person delegating.

e) Canon 142,§1: Delegated power lapses: on completion of the mandate; on

expiry of the time or on completion of the number of cases for which it was granted,
etc.ccxcii

1. In practice, therefore, when the executor is voluntary, i.e., the executor is given
the faculties by the Holy See for a certain act, that which is left to his/her discretion,
he/she, as a delegate, may choose a substitute or subdelegate, unless the executor had
been chosen for personal qualifications or subdelegation was expressly forbidden (can
137,§2). If, however, a voluntary executor is acting on behalf of an authority other than
the Holy See, e.g., a diocesan bishop, such an executor cannot choose a substitute unless
the delegation is for all cases or he/she has been expressly mandated to do so (can.
137,§3).

The substitute chosen to execute an administrative act cannot in turn subdelegate such
powers, unless further substitution was provided by the one issuing the original
administrative act in accordance with canon 137,§4, or it concerns only the preparatory
acts.

1. When there is question of a necessary executor, who is acting merely as an agent

or intermediary between the one issuing the act and the subject, and no executive power
is involved, there seems to be no other restrictions on substitution than those mentioned
in canon 43.

1. Once the executor has chosen a substitute, does the executor lose the powers
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entirely so that the substitute now depends directly on the author of the administrative
act? It appears that canonical writers do not include substitution or subdelegation of
execution as one of the ways the power of execution ceases. The function of an executor
ceases: a) with the valid execution of the administrative act; b) with the lapse of time
allotted for the execution; c) with the lack of matter for execution; d) with the death of
the executor if execution was a personal mandate; e) with the revocation of the mandate
intimated to the executor; f) with the fulfilment of the condition attached to the office; g)
with renunciation, if the executor is voluntary.ccxciii

1. Chiappetta raises an important (theoretical) question concerning appointment of

lay persons as executors or their substitutes of administrative acts. In other words, can a
lay person be appointed an executor or a substitute executor of administrative acts? He
answers the question saying that if execution of an administrative act involves exercise of
the power of orders lay persons cannot be appointed to such tasks. However, if it
involves only the power of ecclesial governance, lay persons can be entrusted with these
functions. This would be in conformity with the letter and spirit of canon 129, §2 which
allows lay persons to “cooperate” or “participate” in the exercise of the power of
governance in the Church “according to the norms of law.”ccxciv

Canon 44

Executor’s Successor in Office

The executor’s successor in office can also execute an administrative act

unless the executor was chosen for personal qualifications.ccxcv

Commentary

1. An ecclesial office has juridical stability. Therefore, if there is no titular of an

office to which the execution of an administrative act is attached, then the successor will
be authorized to execute any administrative act which he is entitled to in virtue of his
office, provided that such execution is not entrusted to the office holder for personal
qualifications.ccxcvi

Canon 58 of the 1917 Code, which had an identical norm, concerned rescripts. This
canon stated that a rescript may be executed by the executor’s successor in the dignity or
office, unless the executor shall have been appointed on account of personal qualification.
The executor’s successor in dignity meant the successor in any function or honorific title;
successor in office meant any function (can. 145, §1).ccxcvii The present canon (44) is
substantially the same except that it leaves out “the successor in dignity.”

1. According to the interpretation of canon 58 of the 1917 Code, the power of

executing a “rescript” was transmitted, e.g., on the vacancy of a see, from a bishop to the
cathedral chapter (or to the college consultors), then to the vicar capitular (diocesan
administrator), and at length to the newly appointed bishop. The successor took charge
of the execution at the point at which it was left by his predecessor; it was not necessary
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to repeat the acts already performed.ccxcviii This course of action has been maintained in
the new Code (cann. 416-427).

1. The successor of the executor may execute the administrative act, unless the
original executor was chosen for personal qualifications (industria personae).ccxcix The
choice of executor by reason of personal qualifications is not presumed. In doubt
whether the mandate of the executor is personal or real (i.e., made to the office), and
whether substitution is permitted, some authors, such as Regatillo, say that the mandate is
presumed to be real and with the right to substitution; that is, the successor is entitled to
proceed with the execution.ccc Others, such as Naz, say that, in case of doubt, the proper
course of action is to consult the one who issued the act. In practice, because of
divergence in opinions among learned authors, it seems either opinion could be followed.

Canon 45

Error in Execution

If the executor has erred in any way in the execution of an administrative

act, the executor is permitted to execute the same act again.ccci

Commentary

1. Canon 59 of the 1917 Code concerned execution of rescripts. This canon had two
paragraphs. In the first paragraph it was stated that, should an executor make a mistake
in the execution of rescripts, the execution is to be repeated in order to repair the mistake
made in the previous execution. Paragraph 2 spoke of the fees for the execution of
rescripts. The revised canon 45 repeats substantially only paragraph 1 of the 1917 canon,
but applies it to administrative acts in general.

1. The error mentioned in the canon must be substantial, for example, non-
observance of the stipulations of canon 42, or error in the person to whom the act is
addressed or in the subject matter of the act, etc. In such a situation, the executor is
permitted to re-execute the act. If it is not substantial, the execution is valid, and there is
no need to repeat it. If a substitute appointed by the executor should make such an error
in executing the administrative act, the right of correcting the execution by repeating it
pertains to the substitute and not to the executor appointed by the author of the
administrative act.cccii The reiteration of execution of administrative act may be done in
whole or in part.

Canon 46

Cessation of an Administrative Act

An administrative act does not cease when the authority of the one who
established it expires unless the law expressly provides otherwise.ccciii
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Commentary

1. Canons 60-61 of the 1917 Code dealt with the duration and cessation of
“rescripts,” while canons 70-77 covered the cessation of privileges. The new Code has
parallel canons which will be commented upon in their respective places. Canon 46 of
the new Code deals with the cessation of singular administrative acts in general. It
provides a general principle applicable to all administrative acts. According to this
principle, a singular administrative act does not cease with the expiration of the authority
of or by the resolution of the right of the one who issued it. For example, a rescript,
unless it has been expressly granted for a certain period of time, is of its nature perpetual
according to the principle: “It is fitting that any favour granted by a prince should
remain” (R.I. 16, in VIo).

1. The law may expressly place limits on the duration of an administrative act even
though of its very nature it is perpetual. The law in this case may be either universal or
particular. The general principle in this regard is that no singular administrative act is
revoked by a contrary law, unless the law itself expressly provides otherwise. Thus, for
example, the universal law may expressly limit duration of certain singular administrative
acts (see cann. 58, §2; 81; 481); or the diocesan law itself may expressly stipulate that
certain privileges cease with the death of the bishop who grants them. This provision
does not overrule the fact that there may be some built-in limitations which would cause
cessation of singular administrative acts with the resolution of the authority of their
author. For example, the author of a decree may add the clause, “according to our good
pleasure,” “during our term of office,” etc. In this case, singular administrative acts will
cease, for example, at the death of the one issuing them.

Canon 47

Cessation of an Administrative Act by Its Revocation

The revocation of an administrative act by another administrative act of a

competent authority takes effect only from the moment at which the revocation is
legitimately made known to the person for whom it has been given.ccciv

Commentary

1. Canon 60 of the 1917 Code, dealing with the revocation of rescripts, stated that a
rescript which is revoked by a special act of the superior remains valid until the
revocation has been duly communicated to the beneficiary. Canon 47 of the new Code
reiterates the same principle in regard to revocation of singular administrative acts. The
revocation of these acts by other administrative acts becomes effective only when the
persons to whom they were issued are duly notified.

Canon 47 implies that the revocation of a singular administrative act may be done by
competent authority. The competent authority may be the one who issued the act, his/her
successor or superior. The notification of the revocation should be a formal and official
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intimation or declaration sent by the competent authority or by a person duly delegated.

1. In principle, laws that are contrary to singular administrative acts, e.g., a rescript,
do not automatically revoke them. In order to have the effect of revocation, the contrary
laws should expressly stipulate such revocation, e.g., “all singular administrative acts to
the contrary notwithstanding”; not, however, the clause,”all things to the contrary
notwithstanding.”cccv Canon 73 concerns the revocation of rescripts by a contrary law. It
reiterates the principle stated above: “Rescripts are not revoked by a contrary law unless
the law itself provides otherwise.”

1. Can singular administrative acts issued by local Ordinaries be revoked by the laws
enacted by the supreme legislator without specific reference to that effect? The general
opinion of commentators was that “a rescript granted by a local ordinary is tacitly
revoked by a contrary law of a plenary or a provincial council. Likewise a rescript
granted to an exempt religious by his provincial superior is withdrawn by a contrary law
of a general or provincial chapter.”cccvi This opinion was based on the interpretation of
canon 60 of the 1917 Code. But, the revised canon 73, on the revocation of rescripts,
simply states rescripts are not revoked by a contrary law, unless it is provided in the law
itself. Therefore, paragraph 2 of canon 60 of the 1917 Code is being eliminated in the
revised canon. Thus, the application of the interpretation mentioned above does not seem
relevant in the new Code. Any contrary law should be specific about the revocation of a
singular administrative act. In summary, a singular administrative act ceases: (a) through
formal revocation by the competent authority (the same authority whence the act had
come, the successor, or the hierarchic superior), but such a revocation is effective only
when it has been communicated to the person to whom it is directed; (b) through
cessation of conditions attached to the act; (c) through lapse of time for which it was
granted; (d) and through the death of the beneficiary if it was personal.cccvii

CHAPTER II

SINGULAR DECREES AND PRECEPTS

Singular administrative acts are: decrees, precepts and rescripts. Through singular
decrees either decisions are conveyed or provisions are made. The precept is used to
impose an obligation or injunction of a person(s). And rescript is bearer of a privilege,
dispensation, permission or some other favor. Chapter two provides specific principles
governing singular decrees and precepts.

Following is the schema of this Chapter on Singular Decrees and Precepts (cann.48-
58):

1. Concept of a singular decree

2. Singular precept
3. A norm of prudence
4. The written and motivated form
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5. Efficacy of a singular decree

6. Contrary singular decrees
7. Operative force of a singular decree
8. Mode of communication of a singular decree
9. Presumption of legitimate notification
10. Protection of justice and of the rights of the faithful
11. Cessation of a singular decree

Canon 48

Concept of a Singular decree

A singular decree is an administrative act issued by a competent executive

authority in which a decision is given or a provision is made for a particular case
according to the norm of law. Of their nature, these decisions or provisions do not
presuppose a petition.cccviii This canon seems more logical than the Latin canon. It clearly
distinguishes between the following singular administrative acts: (a) decrees: decisional and provisory;
(b) precept; (c) rescript, which include privilege, dispensation, permission and another favor. See CLSA
Commentary 2000, p. 110.

Commentary

1. Canon 48 defines a singular decree. This canon does not have an

equivalent in the 1917 Code. Webster’s Third New International Dictionary
defines a decree as: a) to command or enjoin authoritatively; order or appoint by
decree; b) to settle or decide (a legal cause) by a judgment; to determine or order
judicially by authority or by decree; c) decree-law (general decree as in can. 29), a
decree of a ruler or ministry having the force of law enacted by the legislator.
This is an all inclusive definition. Canon 48 has a specific meaning in canon law.

1. According to canon 48, a singular decree (command, order, decision, etc.)

contains a number of elements;

a) It is an act of executive or administrative power rather than of legislative or

judicial power. A decree may indeed be issued by one exercising judicial power, e.g., a
decree of a judge during a first instance ecclesiastical trial, or a decree of a collegiate
appeal tribunal ratifying a first instance decision (cann. 1617, 1684). This would be a
judicial and not administrative decree.

b) It is an act of competent executive authority: those enjoying legislative power,

e.g., the diocesan bishop, and those enjoying only executive power, e.g., Vicars General,
Episcopal Vicars, etc., can issue decrees in the sense of canon 48.

c) It is issued in conformity with the norms of law: one who issues a decree must
keep in mind universal and particular laws of the Church pertaining to the matter of the
decree, e.g., laws concerning members of religious institutes, clerics, ecclesiastical
property, etc.; failure to observe such laws could result in the decrees being illegal or
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even invalid; for example, a decree issued by a religious superior in a matter where the
consent of a chapter or council is required but not obtained is invalid (e.g., can 627, §2).

d) It is meant for a particular case by which a decision is given or a provision is

made: singular decrees of their nature are directed to individual cases and/or persons, and
thus are distinguished from general decrees (can. 29) and general executory decrees (can.
31) which address communities as do laws; singular decrees are of many varieties as
mentioned earlier.

e) Of its nature it does not presuppose a petition from anyone; thus a singular
decree is distinguished from a rescript (can. 59, §1) which presupposes a petition by
someone; sometimes a decree is issued in reply to a petition, for example, in
ecclesiastical trials (can. 57,§1), while even a rescript can be granted without a petition,
“motu proprio” (can. 63, §1).cccix

Chiappetta says that “legality” is of the essence of an administrative decree, which cannot
be an illegitimate or arbitrary act. In order to be valid, it should be placed by a competent
authority as well as it must be issued in accord with the norms provided in law. In
particular, they cannot be contrary to law or against the administrative acts of a higher
authority.cccx

Canon 49

Concept of Singular Precept

A singular precept is a decree which directly and legitimately enjoins a specific

person or persons to do or omit something, especially in order to urge the observance of
law.cccxi

Commentary

1. The 1917 Code dealt with the question of particular (singular) precept in canon
24. A precept is an order directed either temporarily to a whole community (general
precept) or to a particular person(s) (particular precept). Ordinarily a precept affects
individuals, and then it differs from law in the following respects: it is not of necessity
directed to the promotion of the common good; it generally enjoys only a temporary
character, and its obligation is not limited by territorial boundaries but “clings to the
bones” and follows the person to whom it is given.cccxii A precept (singular) does not
introduce a new law but is directed to the more efficient application or execution of
existing norms relative to an individual or a group of persons.

1. Being an order from a competent superior, a precept imposes an obligation either

in the internal forum and directly concerns the spiritual good of the subject, or in the
external forum and is per se ordained for the good of the subject on whom it is imposed,
and for the governance of the society, e.g., to avoid scandal, as a precaution against
crime, etc. Such are, for example, penal precepts (can. 1319).cccxiii
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1. Even though a precept generally lacks perpetuity characteristic of laws, it must be

honest, just, possible, useful and published, that is, directly intimated by the one who
issues to the one to whom a precept is directed.cccxiv

1. Chiappetta distinguishes between a precept that emanates from a public

jurisdictional authority and the “dominative” precept which is issued by the father of the
family toward his children, by the president of an association, by the rector of a seminary
or of a church or by a parish priest, etc., each within proper competence. But the
authority of a titular of an ecclesial office is not simply “dominative” but public in
nature.cccxv

Canon 50

A Norm of Prudence

Before issuing a singular decree, an authority is to seek out the necessary

information and proofs and, insofar as possible, to hear those whose rights can be
injured.cccxvi

1. As we have seen in canon 48, a singular decree is intended to convey a decision

or to make a provision for a particular case and it should be issued in accordance with the
norms of law.
Let us say, for example, that a person has been appointed to an ecclesiastical office. Such
an appointment should be done in accordance with canons 146-163. Furthermore, care
should be taken by the one issuing the decree of appointment to investigate properly the
situation which might involve acquired rights that may be infringed upon by such an act.
Therefore, canon 50 lays down the norm that, before a singular decree is issued, the
authority in question should seek the necessary information and proof, and, as far as
possible, should consult those whose rights could be harmed.

1. The thrust of this new canon is to avoid any hasty decisions and actions which can
cause more damage to persons concerned and to the Church than the good that is
intended to be achieved by such actions. Thus, for example, before issuing a decree
removing a parish priest from his office, the bishop should follow the prescripts of
canons 1741-1744.

If a particular decree should be seen as unjust, those to whom it has been directed may
have recourse against the decree according to canons 1732-1739.

1. Through this canon the legislator expresses a very important ecclesial concern in
regard to the respect for law, the defence of rights of the faithful and avoidance, as far as
possible, of unnecessary litigations and recourses against superiors’ decrees. The same
principles are reiterated also in canon 1517 of the Eastern Code which, however, adds
some more details to those in canon 50 of CIC. CCEO c. 1517,§2 reads: “The authority
 92

is to disclose to the petitioner and also to one who legitimately opposes the information
and proofs which can be known without danger of public and private harm, and present
the arguments that are perhaps contrary while giving them the possibility to respond,
even through an advocate, withing the time-limit established by the authority itself.”
Even though the Latin Code has the same principles dispersed in the procedural law, the
Eastern Code has situated them within the context of procedure to be followed in issuing
a decree. It is meant to safeguard the rights of all involved, but especially the right of
defence in matters affecting personal good of the faithful.

Canon 51

The Written and Motivated Form

A decree is to be issued in writing, with the reasons at least summarily

expressed if it is a decision.cccxvii

1. Canon 24 of the 1917 Code spoke of the necessity of committing a precept to

writing in order to have legal force. This canon stated that a precept issued in the form of
a legal document or in the presence of two qualified witnesses may, if based on
jurisdictional (judicial) power, be enforced judicially, that is with trial and sentence.cccxviii

1. Commentators of this canon questioned the possibility of the enforcement of

dominative precepts. It seems that authors did not agree whether the canon cited above
also affected particular precepts imposed in virtue of dominative power. The more
common opinion probably excluded this application because precepts emanating from
dominative power could not be enforced by judicial process. Nevertheless, dominative
precepts were binding in both fora; and, although they were not subject to jurisdictional
enforcement, the competent superior could punish transgressions by means of penances
and other disciplinary remedies.cccxix But the new Code does not revive this controversy
because the question of dominative power no longer seems to have any juridic relevance.

1. The requirement of a written document seems to concern only the liceity of the
decree and its validity. According to canon 124, §1 of the new Code, for the validity of a
juridical act it is required that it contain the formalities and requirements which the law
prescribes for the validity of the act. Therefore, unless otherwise indicated in law, the
requirement of issuing a decree or a precept in writing is not for the validity of the act but
only for its liceity.

1. Canon 51 requires that a singular decree containing a decision, including a

precept, should be issued in writing expressing, at least in summary form, the reasons for
the decision. In other words, the executive authority should outline briefly the
circumstances which have led to the decision, the steps taken to resolve the situation by
other means, e.g., to transfer or retire a pastor rather than to remove him, etc. This should
be done in writing both for the protection of the authority and the subject and for the
possibility of enforcing it in the external forum (canon 54, §2).
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If the decree is decisional in nature (a term, which Chiappetta calls “quite vague”
“abbastanza vago”), should also contain, at least in a summary form, the motives on
which it is founded.cccxx This would not only help in avoiding arbitrariness in issuing the
act, but also because the person to whom it is addressed, and who considers him/herself
harmed by it, can place recourse against it with appropriate arguments in his/her favor.
Such a norm, similar to those mentioned in the preceding canon, has the scope of
guaranteeing objectivity and legality of the decree, thus duly safeguarding the rights of
the faithful.cccxxi

In view of the general nature of this norm, the two requirements, namely the written form
and the motives, are not declared in this canon to be necessary for the validity of the
decree. But it is very important to read carefully each canon of the Code in which these
requirements may be imposed for validity. For example, the two following canons
contain the requirement “under pain of nullity”: canon 699, §1 (the decree of dismissal of
a religious from the institute on the part of the supreme moderator) and canon 1617
(decrees of the judge which are not merely procedural).cccxxii

The requirement of explicitation of motives (at least in a summary form) has

repercussions for recourse by those who might feel aggrieved by the act. As M. Moodie
correctly states, although canon 55 deals with situations which exempt the administrator
from handing over a written text, no similar provision permits the exclusion of reasons in
a decisional decree. He also points out that CCEO c. 1519, §2 requires a summary of the
reasons but adds a qualification: “However, if the danger of public or private harm
precludes that the reasons be disclosed, they are to be expressed in a secret book and
shown to the one who handles the recourse that is possibly introduced against the decree,
if that person requires it.” But this provision is not without its problems. For example,
what does the “secret book” mean? Where is this book to be held? How is the person to
know that there exists such a book? The Latin Code does not make this provision.
Despite its novelty, Moodie observes that the provisions of the Latin Code seems to offer
better protection in this matter.cccxxiii

Canon 52

Efficacy of a Singular Decree

A singular decree has force only in respect to the matters which it decides
and for the persons for whom it was given, unless it is otherwise evident.

Commentary

1. According to canon 48, a singular decree concerns a particular case and

determinate person or a group of persons (e.g., an association of the faithful). Therefore,
it has a personal and specific character. This was implied in canon 24 of the 1917 Code.
Also, canon 16, §3 (can. 17, § 3 of the 1917 Code) contains a norm governing an
authentic interpretation given by way of a judicial sentence or a rescript which binds only
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the individuals to whom they are directed. Canon 52 distinguishes three aspects of the
effect of a decree. First, a decree affects only that matter in respect of which it has been
granted. It should not be extended to other matters. Second, it has effect in respect of
only those persons to whom it is given. Third, it obliges such persons everywhere.

1. It is possible that, in keeping with canon 50, singular decrees may be of interest to
others who might feel that their rights are being violated thereby. Parishioners may feel
that they have been treated unjustly by their bishop who transfers their pastor very
frequently. It is not unknown in recent years for parishioners to lodge a formal protest
against bishop’s decrees of transfer or removal of pastors.. Sometimes such protests may
be legitimate. Nevertheless, the effect of the decree itself is restricted to the person (here
the pastor concerned) to whom it is directed. In this case one cannot apply the principle
of analogy to extend the force of the decree to other situations.

1. In canon 24 of the 1917 Code it was stated that a precept binds the person
everywhere. Canon 52 makes this prescript applicable to a singular decree. Thus, for
example, if a priest has been given a precept by his bishop, it binds him everywhere even
outside the diocese, unless the document imposing the precept clearly specifies
otherwise. The aspect, “clings to the bones” of the recipient of the singular decree,
distinguishes it from a particular law. According to canon 13, §1, particular (e.g.,
diocesan) laws are not presumed personal but territorial, unless stated otherwise.

In virtue of the principle stated in canon 52, once a decree is legitimately issued and
implemented, it effectively binds the person or persons to whom it was issued until such
time it is withdrawn or otherwise legally abrogated. It binds the person, not the place
where the person happens to be, and continues to bind the person or persons even when
they move outside the territory of the particular administrator. If the diocesan bishop
imposed a censure using administrative process, the censure continues until revoked even
if the person moves to a new diocese. It remains a legitimate and effective act of
governance.cccxxiv

Canon 53

Contradictory Decrees

If decrees are contrary to one another, a particular decree prevails over a

general in those matters which are specifically expressed. If they are equally
particular or equally general, the decree later in time modifies the earlier to the
extent that the later one is contrary to it.cccxxv

Commentary

1. Canon 48 of the 1917 Code had a norm similar to the one in the present canon 53.
The former concerned contrary rescripts, while the latter concerns singular decrees. The
former stated that, should two rescripts pertaining to the same matter be contradictory, the
particular rescript would prevail over the general one in the points expressed as particular.
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It did not matter whether the particular rescript was issued before or after the general one.
If it was granted before the general one, then it came under the principle that a general
law or provision does not derogate from a former particular one unless an express
disposition is made to that effect. If it was granted after the general one, then it was
considered as an exception to the latter, through the application of the rule, “general law
is specified by particular law.”cccxxvi

If both rescripts were particular or general, the rescript issued first would prevail over
that of later date, unless the latter contained express mention of the first or the beneficiary
of the first had not made use of it through fraud or notable negligence. This principle
involved application of the rule, “whoever is first in time has the stronger case at
law.”cccxxvii
1. With the exception of the prescript of canon 67, §2, the same principles stated
above are applicable to singular decrees as well. Canon 53 makes a distinction between
two possible situations in which singular decrees may deal with the same situation or
circumstances: one in which there is a conflict between a general decree and a specific
decree; the other in which there is conflict between two general decrees or two specific
decrees. There is an assumption in the canon that the conflicting decrees emanate from
the same authority, since the conflict of authority is a different matter, because the decree
of a higher authority takes precedence over that of a lower authority.cccxxviii

The following examples may illustrate these two conflicting situations. In the first case,
the diocesan bishop issues a general executory decree providing guidelines on some
particular matter for the good of the diocese. Then he also issues a singular
administrative decree concerning the same matter addressed to a particular person or
persons. This decree provides for the particular situation of a specific parish or an
association under his jurisdiction, and consequently, under the force of the general
decree. However, the particular decree conflicts with the general executory decree. In
such a circumstance, the provision for the specific situation would prevail over the
general decree. The principle followed in this case is “General law is specified by
particular law.”cccxxix This, Chiappetta calls, the “principle of specificity.”cccxxx

The second case may be described as follows: the diocesan bishop issues two conflicting
general decrees or singular decrees without providing for the resolution of the conflict
within the texts of the decrees themselves. In this situation, the more recent decree takes
precedence, following the principle: “Whoever is first in time has the stronger case at
law.” The norm presumes that the administrator’s intention in providing for the public
good is better reflected in the action that is more immediate in time, the “principle of
chronological posteriority.”cccxxxi

Canon 54

Operating Force of a Singular Decree

§1. A singular decree whose application is entrusted to an executor takes

effect from the moment of execution; otherwise, from the moment it is made
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known to the person by the authority of the one who issued it.
§2. To be enforced, a singular decree must be made known by a legitimate
document according to the norm of law.cccxxxii

Commentary

1. Canons 38 and 28 of the 1917 Code dealt respectively with the moment at
which rescripts, with or without an executor, became effective, and with the
requirement of conveying the precept (singular decree) by means of a lawful
document for its enforceability in the external forum. The norms of these two
canons are integrated into canon 54 of the new Code and these are applicable to
singular decrees.

1. Canon 37 of the new Code distinguishes between a decree issued in forma

commissoria and in forma gratiosa. An act issued in forma commissoria requires an
executor to render it effective. Canon 54, §1 states that a decree given in forma
commissoria becomes effective from the moment of execution. This presupposes that the
execution has been done in writing if it concerns a decree dealing with the external forum
(can. 37) and in accordance with the prescript of canons 40-45. In case the execution of
the decree cannot be done in writing, a reading of it to the subject in the presence of a
notary or two witnesses suffices (can. 55). From the moment this is done, the singular
decree becomes effective. If a decree is issued in forma gratiosa, the decree begins to
bind from the moment the subject receives official notice of the same. It has the effects
on its own without the intervention of any executor.

1. Canon 54, §2 concerns the enforcement of a singular decree in the external forum.
According to this canon, a decree should be issued through a lawful document in
accordance with the norms of law for its legal enforcement. Where a legal document is
lacking, a decree cannot be enforced even though it may still oblige the subject in
conscience. If a bishop wishes to enforce obedience, say before his curial tribunal, the
decree must have been issued by a document drawn up in accord with the stipulations of
canons 37 and 51. A copy of the document should be given to the subject or, in
accordance with canon 55, at least it should be read to the person in the presence of a
notary or two witnesses. Before such notification the decree has not effect and,
consequently, the public authority cannot oblige the person either through an
administrative or judicial process.cccxxxiii The basic rule is that an administrative act takes
effect only when the person affected by it is notified through an authentic document.cccxxxiv

1. The document containing a singular decree is legal if it bears the signature of a

notary, but not, in the sense of canon 54, if it is a simple letter dated and signed only by
the superior, unless extrinsic evidence is available to prove that the administrative act was
legitimately communicated to the person whom the superior sought to bind. At the very
least, the letter should bear the seal of the superior, testifying to its authenticity.cccxxxv
 97

Canon 55

Substitute Form of Communication of the Decree

Without prejudice to the prescripts of cann. 37 and 51, when a very grave
reason prevents the handing over of the written text of a decree, the decree is
considered to have been made known if it is read to the person to whom it is
destined in the presence of a notary or two witnesses. After a written record of
what has occurred has been prepared, all those present must sign it.cccxxxvi

Commentary

1. Canon 37 requires that an administrative act which concerns the external forum be
issued in writing; likewise, when it has an executor, the act of execution is to be in
writing. Canon 51, applying canon 37 to a singular decree, prescribes that it be issued in
writing.

Canon 55 provides for situations when the written text of the decree cannot be handed
over to the subject. Two situations may be mentioned: First, the executive authority may
wish to serve the decree immediately, and chooses to have the decree read to the subject
by his delegate, because he has no means of making a copy, e.g., in a mission station.
Second, the superior may not wish to hand over a copy of the decree for fear of great
scandal or harm, or its reasons being used in a civil court in favour of a damage or libel
suit. This canon does not specify what constitutes a “very grave reason.” The one who
issues the decree or precept will have to use his/her prudent judgment in this regard. A
public form of notification of the decree is absolutely necessary.

1. The method of procedure in intimating the decree to the subject when the text of
the decree cannot be, for a very grave reason, handed over, is as follows: The person
issuing the decree or the delegate reads it to the person to whom the decree is directed, in
the presence of a notary, or two witnesses. A report on this act is drawn up duly signed
by the superior or the delegate, by the subject of the decree and by the notary or the two
witnesses who were present at the reading.cccxxxvii This legal document becomes proof of
legitimate notification of the decree.

In their commentary on canon 24 of the 1917 Code, Regatillo and Coronata implied that
it was sufficient that the one issuing the decree reads it to the subject.cccxxxviii But now the
prescript of canon 55 should be followed.
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Canon 56

Presumption of Legitimate Notification

A decree is considered to have been made known if the one for whom it is
destined has been properly summoned to receive or hear the decree but, without a
just cause, did not appear or refused to sign.cccxxxix

Commentary

1. This canon seems to foresee three situations with regard to the acceptance of a
decree by the subject to whom it is directed: first, the subject is given the text of the
decree and he/she accepts it; second he/she signs the decree when the text of the decree is
duly read out to him/her; third, he/she refuses, without a just cause, either to accept the
decree or to sign after it is read. In the last situation, canon 56 prescribes that the subject
should be regarded as being legitimately informed of the decree. Without a just reason,
which should be presented before the decree is issued, one has no option to refuse the
decree. Lack of cooperation from the person to whom the decree is directed does not
prevent its legal efficacy. The law recognizes the efficacy of the decree even if its actual
notification has not occurred because of such lack of cooperation. The prescript of this
canon seems similar to that of canon 1510 which states: “A respondent who refuses to
accept the document of citation, or who prevents its delivery, is considered to be lawfully
cited.”

Canon 57

Protection of Justice and of the Rights of the Faithful

§1. Whenever the law orders a decree to be issued or an interested party

legitimately proposes a petition or recourse to obtain a decree, the competent
authority is to provide for the matter within three months from the receipt of the
petition or recourse unless the law prescribes some other time period.

§2. When this time period has passed, if the decree has not been given, the
response is presumed to be negative with respect to the presentation of further
recourse.

§3. A presumed negative response does not exempt the competent

authority from the obligation of issuing the decree and even of repairing the
damage possibly incurred, according to the norm of can. 128.cccxl

Commentary

1. According to canon 48, a singular administrative act issued by a competent

executive authority, of its nature, does not presuppose that a petition has been made by
 99

anyone. That does not mean that singular administrative acts cannot be issued when there
is a legitimate petition for it. As a matter of fact, canon 57 implies that there are
situations in which law itself orders a decree or a legitimate petition from the party
concerned demanding a decree. In other words, the obligation to issue a decree may arise
either from law itself or from a legitimate petition. If, for example, an election or
presentation of a candidate requires installation or confirmation by a competent authority
(e.g., by the diocesan bishop), the competent authority must respond by virtue of canons
163 and 179. Similarly, if a group of electors legitimately submits a postulation to a
competent executive authority by virtue of canon 180, §1, the competent authority has an
obligation to respond to the petition. When legal responsibility exists, the executive
authority must give a response within three months.

1. In certain cases law itself provides periods for a competent authority to issue a
decree, for example, to a recourse against a decree of a superior lodged within the
peremptory time-limit of ten canonical days from the time the decree was lawfully
notified, the competent authority must communicate a new decree within 30 days from
the time the petition reaches the author of the decree (cann.1734, 1735). In the case of
incardination the competent authority has four months to respond (cfr. can. 268, §1).
However, there are other situations where the law does not prescribe any definite period
for a just response. In such cases, the prescript of canon 57 should be followed. That
means, when no other time limit is prescribed in law, the three months period stipulated
in canon 57, §1 binds the executive authority. This period is “continuous” time (cfr. can.
201, §1), and it is computed according to the prescripts of cann. 202-203.

1. If, at the end of the three-month period, the decree requested by the party has not
been issued, it is to be presumed that the executive authority wishes to bar further
recourse (can. 57, §2). In other words, the silence is to be interpreted as a negative reply:
“Silence means denial.” Then, the party can have recourse to appropriate hierarchic
superior (can. 1737, §1). The negative reply gives the petitioner only the right to place
recourse against such inaction.cccxli Furthermore, specific norms can overturn this
presumption. For example, canon 268, §1 provides that in cases of excardination and
incardination silence from the competent authority is to be taken as approval rather than
denial. Canon 57 provides a general rule which can be qualified or even contradicted in
specific norms.cccxlii

1. Canon 57, §3 emphasizes the fact that a presumed negative reply does not absolve
the person responsible from the obligation to issue the decree. He is still bound by the
obligation to issue the decree, and to repair any damages that might have occurred due to
his inaction. In this regard canon 128 states: “Whoever illegitimately inflicts damage
upon someone by a juridic act or by any other act placed with malice or negligence is
obliged to repair the damage inflicted.” For example, if there has been a request from
parishioners of a particular parish that their pastor should be removed for reasons
specified in canon 1741, or be transferred according to canon 1751, and the bishop has
neglected to respond to that request within the prescribed time-period, he is not only still
obliged to issue the decree of removal or of transfer but also to repair the damage done to
the parishioner(s). This canon emphasizes the responsibility of public authorities toward
 100

the service of the community.cccxliii

Canon 58

Cessation of a Singular Decree

§1. A singular decree ceases to have force through legitimate revocation

by competent authority as well as through cessation of the law for whose
execution it was given.

§2. A singular precept not imposed by a legitimate document ceases when

the authority of the one who issued it expires.cccxliv

Commentary

1. Canon 24 of the 1917 Code stated that precepts given to individuals cease to bind
with the expiration of the authority of the one imposing them, unless it was imposed
through a legitimate document or before two witnesses.cccxlv Whether a precept given for
the internal forum without the conditions mentioned (legitimate document or before two
witnesses) ceases with the resolution of the authority of the one issuing it, was disputed
by authors. Cappello pointed out that the opinion which held that per se such a precept
ceased with the cessation of the authority of its issuer was the more probable one.cccxlvi

Canon 58 indicates how singular decrees, including precepts, cease.

1. Canon 33, §2 determines how general executory decrees cease to have effect.
Canon 58 has two parts; the first paragraph deals with the cessation of a singular decree,
while the second concerns cessation of a singular precept. Thus, a singular decree would
cease by:

a) legitimate revocation by the competent authority, i.e., by the one who gave the
decree, by the superior, successor, or delegate; revocation may be explicit or implicit as
explained in canon 33, §2.

b) cessation of law to which the decree is related: once the law ceases, so does the
purpose of the decree which urged its observance;

c) by the lapse of time for which the decree was given, e.g., during lent or a
pilgrimage, etc.
1. Canon 46 which concerns cessation of a singular administrative act states: “An
administrative act does not cease when the authority of the one who established it expires
unless the law expressly provides otherwise.” This general norm is applied to a singular
decree in canon 58, §1. According to this canon, therefore, a singular decree, e.g., a
decree of the Vicar General, does not cease if he is made a pastor of a parish without
being the V.G. any longer. However, the same V.G. could issue the decree “ad
beneplacitum,” or there may be a diocesan law declaring certain decrees ineffective when
 101

the one who issues them ceases from office. In these two situations, a singular decree
may cease to have effect from the moment the authority of the issuer ceases.

1. The second paragraph of canon 58 concerns cessation of a singular precept. It

states that a singular precept, imposed without a lawful document, ceases on the expiry of
the authority of the person who issued it.cccxlvii This prescript comes under the nisi clause
of canon 46. Is the same principle applicable to a precept imposed before two witnesses?
It would seem that the omission of the clause providing an alternate mode of legitimate
communication of a precept, namely “or before two witnesses,” contained in canon 24 of
the 1917 Code, is deliberate. Hence it may not be unreasonable to argue that to be
effective beyond the expiry of the authority of its author a precept must be communicated
in a legitimate document and not merely before two witnesses. Accordingly, one may
correctly maintain that a precept imposed in the presence of two witnesses ceases with
the cessation of the authority of its author. However, Chiappetta is of the opinion that in
light of canon 55, which allows oral communication of a singular decree in certain
situations, and also in virtue of canon 24 of the 1917 Code, a precept imposed in the
presence of two witnesses would not cease with the expiry of the authority imposing
it.cccxlviii

1. The authority of the one imposing a precept may cease in various ways, e.g.,
death, renunciation, deprivation of office, etc. Even if the precept was imposed orally for
a definite period of time, the obligation would still cease at the moment of expiry of the
authority of the person imposing it.
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CHAPTER III

RESCRIPTS

2. The term “rescript” comes from the Latin “rescribere,” that is, to respond in
writing. As a juridic institute, it has its origins in Roman law. The term was used during
the imperial period, especially from the fourth century onwards, to indicate a written
response given by the emperor to a request or petition made to him by a private citizen or
even by a public official. While the personal constitutions of the emperor were the sole
source of law and general laws or edicts governed all his subjects, “rescripts” constituted
provisions the emperor made for individual subjects. Their value and scope were fixed
by successive laws and explained by jurisprudence.

The doctrine of “rescript” entered into the canon law system somewhere around the
twelfth century when canonists began to treat it systematically. That does not mean that
there was no prior practice in the Church of granting rescripts. The institute equivalent of
“rescripts” did exist before that time; because even in the first centuries the Popes used to
receive petitions and requests for guidance concerning either the concession of a favour
or the defense of a right, and to reply to these petitions in writing. The first reply of this
kind of which a copy has been preserved dates back to Pope Siricius (385) in a “Letter”
he wrote to Imerio of Taragona, Spain, explaining some doctrinal and disciplinary
problems. Subsequently, this was continued by diocesan bishops and other prelates,
because of which the term “rescript” came to signify an act of an ecclesiastical authority
endowed with the power of jurisdiction or governance, issued in writing in response to a
particular application or request. The practice of issuing rescripts became more and more
frequent in the Middle Ages, and they have played an important part in the evolution of
ecclesiastical legislation through the centuries.cccxlix

2. Today also the Holy See grants privileges, dispensations and other favours
through rescripts. However, in contrast to the exclusive nature of the institute as
recognized in ancient legislation, even the written answers of subordinate legislators are
called rescripts.

Canon 59

Definition of Rescript

§1. A rescript is an administrative act issued in writing by competent

executive authority; of its very nature, a rescript grants a privilege, dispensation,
or other favor at someone’s request.

§2. The prescripts established for rescripts are valid also for the oral
granting of a permission or favors unless it is otherwise evident.cccl
 103

Commentary

2. The 1917 Code did not contain a canon defining the notion of a rescript.
But the present canon (59) provides a definition of a rescript.

The new Code defines as rescript as:

a) an administrative act, as opposed to a judicial decree. It is administrative

because it proceeds from executive rather than judicial or legislative power. Insofar as it
derives from the executive authority, it resembles general executory decrees and other
singular administrative acts. But it differs from laws and general legislative decrees
(cann. 29-30) because these proceed from legislative authority.

b) a singular administrative act, because it is directed to an individual or group of

persons as individuals. A law, a general legislative decree, and a general executive decree
are addressed to communities capable of receiving the law.

c) issued in writing: the very word “rescript” (res scripta) implies that a juridic
act, of its very nature, is given in writing. According to canon 74, favours can be granted
orally (oraculum vivae vocis); but these can be used only in the internal forum. In order
that they may have effect in the external forum, they should be capable of proof either by
a document, or by witnesses.

d) granted at someone’s request: a rescript presupposes that a petition has been

made by either a physical or juridical person. Even when a rescript is granted by the
lawful authority at the request of a petitioner, it may contain a clause motu proprio. This
phrase indicates that the pope or other lawful authority grants the favour requested purely
out of generosity and not for the reasons advanced by the petitioner. A rescript containing
this phrase obviously enjoys greater value than one granted ad instantiam or ad preces.cccli

A rescript differs from other singular administrative acts, such as, singular decrees and
precepts, in the sense that the latter are usually not requested by a petitioner.

e) by which of its very nature a privilege, dispensation or other favour is granted:

This phrase implies that a rescript is an instrument or a vehicle through which an
executive authority grants a privilege (cann. 76-84), or a dispensation (cann. 85-93), or
some other favour, e.g., an ecclesiastical honour, etc.

2. Classification: Rescripts may be distinguished in relation to the object, the law

and the form:ccclii

a) In relation to the object, rescripts may be of justice (dealing with judicial

controversies); of favour (concessions of some favour); and mixed (containing both
elements). Rescripts of justice are addressed to the administration of justice in the
Church, hence through them favours are granted to parties involved in a litigation
 104

according to the norms of law. For example, the concession to a local tribunal by the
Signatura of the competence to hear an appeal in third instance. Rescripts of favour
concern favours not connected with any judicial contention, e.g., a privilege,
dispensation, an indulgence, a faculty, honour, etc. Mixed rescripts contain a favour and
a decision on a contentious matter in the administration of justice, e.g., assignment to an
office possessed illegitimately by someone else.cccliii

b) In relation to law, rescripts can be contrary to the law (contra legem), outside
or beyond the law (praeter legem), and according to the law (iuxta legem). Rescripts
contrary to the law derogate from the law, e.g., a dispensation from marriage
impediments. Rescript beyond the law, for example, will be special faculties granted to
bishops, as the Quinquennial or Decennial faculties. These faculties are beyond the law
because they have not been foreseen in the law itself. An example of a rescript according
to the law is the concession by the bishop the faculty to a presbyter to confirm (can. 882)
or the concession by the Holy Father to the Rota to hear a matrimonial case in first
instance (can. 1444, §2).cccliv

c) By reason of extension, rescripts may be general, which concern all cases of a

particular kind or of certain persons; or special which concern determined cases or
persons (can. 48).

d) By reason of form, rescripts can be favours granted in forma gratiosa insofar as

the one who issues the rescript grants the favour requested directly, without any
intervention, to the petitioner and, therefore, the rescript itself is considered to contain the
favour granted; or granted in forma commissoria, insofar as they are granted through an
executor. That means the rescript does not contain the favour already granted, but the
favour to be granted by the executor. The grant of favour in forma commissioria can be
done in two ways, that is, in forma commissoria necessaria or in forma commissoria
libera. The former implies that the executor is committed the task of granting the favour
which he/she cannot refuse to grant. The executor just exercises the function of an
executor. The latter implies that the executor can use his own discretion in executing the
rescript, and that such an execution is usually committed in facultative words, and the
executor is permitted to grant or refuse the favour according to his/her conscience and
prudent judgment.ccclv

2. The only way to determine what kind of rescript one is dealing with, in what form
it is, etc., is to read the rescript carefully. In general, rescripts affecting the internal forum
are granted in forma commissoria, the confessor being the executor. Rescripts for the
external forum, from the Holy See, are also usually in forma commissoria. An exception
to this rule is the rescript granting the dissolution of a non-consummated marriage; this
comes in forma gratiosa, but must be presented to the Ordinary.ccclvi Rescripts for the
external forum from Ordinaries are usually in forma gratiosa.

2. The structure of a rescript generally consists of two parts, namely, expositive and
dispositive parts. The expositive part contains the name of the petitioner and a summary
report of the petition (narrative section) together with the citation of the reasons or
 105

motives for the concession on which the petition is based (motivating portion); the
dispositive part expresses the tenor of the concession and explains what, in what way, and
under what conditions the favour may be granted. As regards the external form and
redactive style, rescripts are generally set down and sent in a simple letter form,
sometimes in short form and very rarely in the form of a bull.ccclvii

2. The second paragraph of canon 59 is new and it concerns the mode of granting
permission and other favours. It rules that prescripts set down for granting rescripts
apply as well to a permission and favours granted viva voce, unless it appears otherwise.
The word “permission” (licentia) is a faculty or concession foreseen in law and granted
according to the law. Strictly speaking it is not a favour. It is an administrative condition
which enables a person to act according to the norms of law and in subordination to duly
constituted authority.ccclviii

To which category could an act of delegation of faculties or of executive power belong?

Is delegation a singular decree or a rescript? It seems arguments can be made for either
one, but neither category would suit them. One can reasonably argue that the present
Code does not have a general category which could include such acts, although most
commentators include the act of delegation in the category of rescripts considering
delegation as a permission or favour.

Canon 60

Who Can Request a Rescript?

Any rescript can be requested by all those who are not expressly
prohibited from doing so.ccclix

Commentary

2. Canon 36 of the 1917 Code stated that rescripts of the Apostolic See and of other
Ordinaries may be sought by all who are not expressly prohibited from doing so. The
second paragraph of canon 36 added that favours and dispensations of any kind granted
by the Holy See are valid even when granted to those who are under censure, without
prejudice, however, to canons 2265, §2, 2275, 3o and 2283. The canons cited as
exceptions to the general principle of canon 36 excluded from such favours the
excommunicated vitandi and those who through a declaratory or condemnatory sentence
were excommunicated, suspended, or personally interdicted. It appears that even these
persons could validly obtain favours from the Holy See if the censure was mentioned in
the petition and the rescript. There were other canons in the 1917 Code which declared
certain persons inhabiles to receive any ecclesiastical favours or offices; e.g., canon 2291,
9o; canon 2294. Similarly, apostates, heretics and schismatics, after the declaratory
sentence could not validly obtain a rescript because they were excommunicated. Before
the sentence, they could not publicly and formally obtain ecclesiastical favours because
they were not members of the Church.ccclx
 106

The prohibition of paragraph two of canon 36 of the 1917 Code referred only to the
rescripts of the Holy See as they were expressly mentioned in it. Could it also refer to
rescripts of other Ordinaries? There was a difference of opinion on this issue. For
example, Cappello would say that it referred also to the rescripts of other Ordinaries in
cases where an excommunicated vitandus was concerned, while other authors have
presented a different opinion.ccclxi
2. Canon 60 of the new Code maintains a simple and direct prescript. It merely
states that any rescript can be obtained by all who are not expressly prohibited. The
canon does not make a distinction between rescripts from the Holy See or those from
other Ordinaries. The prescript of the canon applies to any rescript irrespective of its
source.

The new Code has at least one canon which seems to prohibit the excommunicated from
applying for rescripts after sentencing; Canon 1331,§ 2,4o: “If the excommunication has
been imposed or declared, the offender [...] cannot acquire validly a dignity, office or
other function in the Church.” The penalties of suspension and interdict (cann. 1333,
1336) do not carry the automatic denial of a person’s right to apply for and obtain
rescripts; but these penalties can include such a prescript. There is no direct prohibition
addressed to the excommunicated person against asking for a rescript. If such a person
should petition for one, he/she must make sure that mention is made of his/her legal
situation in the Church. Probably the response from the competent authority would be
negative.

It seems that those who are merely suspended or interdicted are not prohibited by the
general law of the Church from applying for rescripts, although they could be so
forbidden by a legislator or ecclesiastical judge in a particular instance (cfr. can. 1315).

2. The new Code has certain provisions according to which members of other
ecclesial communities can ask and receive rescripts from the Holy See and other
Ordinaries. For example, non-Catholics may apply for a dissolution of a non-
consummated marriage, for the privilege of the faith, etc. This implies that non-Catholics
are permitted to ask for and receive certain favours from the Church.

The recommendation of the Ordinary of the petitioner, or at least his approval, should
ordinarily accompany petitions sent to the Holy See. In matters of conscience recourse
should be made to the Apostolic Penitentiary ordinarily through the confessor, although
this is not a matter of obligation.ccclxii
 107

Canon 61

Request of a Rescript on Behalf of Another

Unless it is otherwise evident, a rescript can be requested for another even

without the person’s assent and has force before the person’s acceptance, without
prejudice to contrary clauses.ccclxiii

Commentary

2. Canon 37 of the 1917 Code stated that a rescript may be obtained for another
person even without his/her consent; and though this person is free to use or not to use
the favour conceded by the rescript, the rescript is nevertheless valid before it is accepted,
unless otherwise provided in the appended clauses. The revised canon is substantially the
same.

An example of a favour sought and obtained without the consent of the interested person
is sanatio in radice, granting under canon 1164 without the knowledge of either party, a
dispensation from the law requiring the renewal of matrimonial consent and validating
the marriage involved. Other examples are: the bishop dispenses a contractant from a
matrimonial impediment even when he/she is unaware and is not petitioning, and the
marriage is valid; or, in the case of a parish priest who delegates certain priest to assist at
a marriage, the delegate assists validly even though the delegation might not have been
requested by that priest.ccclxiv

2. In the pre-code legislation a distinction was made in regard to petitioning a

rescript of favour and of justice. A rescript of favour could be petitioned and obtained for
a third party while such was not the case with a rescript of justice. Moreover, for its
effectiveness, either kind of rescript had to be accepted by the recipient. But this
prescript was not included in the 1917 Code as is in the new Code. The single rule is that
a rescript may be sought by someone else provided that the would be recipient is legally
capable of receiving it. It would be pointless, for example, to obtain a faculty to dispense
for someone who is inhabilis to receive or exercise it.

2. A distinction, however, is made between the validity of a rescript and its effective
use. Canon 61 prescribes that, unless acceptance is made a condition for validity, a
rescript is valid without acceptance, because it is not always obligatory to accept and
make use of it. Thus an indult of secularization from simple vows could be refused even
after it has been executed by the Superior according to canons 56 and 38 of the 1917
Code.ccclxv But once such a rescript has been definitely accepted the secularization
becomes effective and cannot be undone.ccclxvi Formerly a rescript of secularization, if not
expressly refused within ten days of the notice of its execution, was presumed to have
been accepted. Later the Congregation for Religious introduced a clause in such rescripts
to the effect that if not definitely accepted within ten days, it is automatically
nullified.ccclxvii It is important, therefore, to read carefully all the clauses and conditions
 108

contained in a rescript.ccclxviii

When it is a question of a rescript of justice, or one by which not merely a favour but a
dispensation is granted, one must see if it concerns only the good of the petitioner, or also
the good of a third party or the public good; if it concerns the good of the petitioner
alone, he/she is free to use it; but, if the good of others is involved the petitioner is not
free.ccclxix

Canon 62

Moment of Efficacy of Rescripts

A rescript in which no executor is given has effect at the moment the letter
is given; other rescripts, at the moment of execution.ccclxx

Commentary

2. Canon 38 of the 1917 Code stated that rescripts by which a favour was granted
without the intervention of an executor took effect from the moment at which the letters
were issued; all others, from the time of the date of execution. The corresponding norm
in the new Code is substantially the same.

2. Canon 62 speaks of two types of rescripts: a rescript granted in forma gratiosa

and one granted in forma commissoria. A rescript granted in forma gratiosa takes effect
from the very moment it is issued, that is, signed by the author. The value of the date of
issue is evident in these two cases: in determining the moment at which one may begin
using the favour granted; and in determining which of the two contrary rescripts, whether
general or particular, precedes the other. The date of the rescript is presumed to coincide
with the day on which the signature was fixed. Moreover, it appears that, if a condition
(e.g., acceptance) to be fulfilled by the recipient is appended to a rescript granted in
forma gratiosa, the favour becomes effective only upon the fulfilment of the
condition.ccclxxi

A rescript in forma commissoria, no matter what the commission of the executor

(voluntary or necessary) may involve, is effective only at the moment of its execution at
which time the reasons on which the concession is based also must be true.
2. The rescript granting dispensation from priestly celibacy is a type by itself.
According to the norms of the Congregation for the Doctrine of the Faith, 14 October
1980, it would seem that this rescript is granted in forma gratiosa.ccclxxii The rescript is
valid at the moment it is dated and signed in Rome, but is effective only upon its
notification to the priest-petitioner. The rescript itself contains the words (n.1): “The
rescript produces its effect from the moment of its notification made to the petitioner by
the competent ecclesiastical authority [...]” (“Rescriptum vim suam exserit a momento
notificationis a competenti Auctoritate ecclesiastica oratori factae [...]”).ccclxxiii
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Canon 63

Conditions for Validity

§1. Subreption, or concealment of the truth, prevents the validity of a

rescript if in the request those things were not expressed which according to law,
style, and canonical practice must be expressed for validity, unless it is a rescript
of favor which is given motu proprio.

§2. Obreption, or a statement of falsehood, also prevents the validity of a

rescript if not even one proposed motivating reason is true.

§3. The motivating reason in rescripts for which there is no executor must
be true at the time when the rescript is given; in others, at the time of
execution.ccclxxiv

Commentary

2. In the 1917 Code, canons 41 and 42 were more or less the equivalents of
the present canon 63. Canon 41 simply stated that in rescripts which do not
require an executor, the reasons on which the concession is based must be true at
the moment the rescript is issued; in all others, at the time of execution. Canon 42
had three paragraphs: §1. The concealment of the truth (subreptio) does not
prevent a rescript from being valid and effective, provided mention was made of
whatever is demanded for validity by the stylus curiae; §2. Nor is a rescript
invalidated by the allegation of a falsehood (obreptio), provided that the single
reason presented is true, or at least one of several motivating reasons presented is
true; §3. Either defect, subreptio or obreptio, occurring in only one part of a
rescript, does not invalidate another part, if several favours are granted
simultaneously by the same rescript. This last paragraph has been omitted in
canon 63 of the new Code.

2. Truth is an essential condition for the validity of every rescript (cfr. can. 40 of the
1917 Code), and the moment at which the petition must be true, for rescripts in forma
gratiosa, is the moment when the rescript is given, and for rescripts in forma
commissoria, is the time of their execution (cfr. can. 41 of the 1917 Code). Canon 40 of
the 1917 Code made two exceptions to the requirement of truth for the validity of a
rescript. First exception was in favour of rescripts granted with the clause, “motu
proprio” (cfr. can. 45); second provided that a dispensation from a minor matrimonial
impediment, granted by rescript, is valid in spite of any concealment or falsehood in the
petition (cfr. can. 1054 of CIC 17). This latter canon has been dropped in the new Code
since it has not retained the law on minor matrimonial impediments.

2. The present canon 63 retains the exceptive clause on rescripts granted “motu
proprio.” Canon 63, §1, indicates that subreption does not invalidate a motu proprio
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rescript, because it is granted at the initiative of the grantor irrespective of the reasons
presented by the petitioner.

2. Apart from the motu proprio rescript, the withholding of truth (subreption) in
applying for a rescript may invalidate the rescript if the petitioner fails to express:

a) what must be expressed for validity according to the law: for example, a
petitioner fails to mention that he/she had been excommunicated by sentencing (can.
1331, §2,4o); or, a petitioner fails to mention that the favour which is being sought was
previously denied by a dicastery of the Roman Curia (can. 64), or the local authority
(Vicars General and Episcopal, bishop, etc; can. 65, §2,3o);ccclxxv

b) what must be expressed for validity according to canonical style and practice:
It must be noted here that the 1917 Code, in canon 42, §1, mentioned only stylus curiae;
whereas, the present canon adds three elements: law, style and practice. Moreover, it
does not say stylus curiae but stylus et praxis canonica. These expressions are much
more comprehensive than their predecessor - stylus curiae. Stylus et praxis canonica
would not only comprise the style and practice of the Roman Curia but also of the
diocesan and religious curia. Stylus curiae designates that mode of transacting business
in the curia which has evolved through usages introduced by papal constitutions and by
custom. In the ancient legislation it was also commonly accepted that if anything was
considered in the Roman Curia as belonging to the validity of the act, e.g., the existence
or the observance of certain conditions in petitions for rescripts, its absence affected the
validity. What these conditions are it is not easy to enumerate in detail, for they vary with
the different Congregations, tribunals, and offices, as well as the subject matter.ccclxxvi
What is necessary to be observed in every ecclesiastical curia is the subject of canons 64
and 65.

2. Obreption invalidates a rescript if not even one of the motivating reasons

submitted is true. Two kinds of reasons or causes may be presented in the petition for a
rescript: motivating (principal, final) reasons (causae motivae), which induce the
superior to grant the favour; and contributing reasons (causae impulsivae), which merely
facilitate the granting of the request. Sometimes a number of contributing reasons taken
together may obtain sufficient weight to induce the superior to act and thus become a
motivating reason.ccclxxvii In obtaining matrimonial dispensation several reasons both
motivating, such as geographic limitation, advanced age, poverty of a widow, pregnancy,
etc., and impulsive, such as physical defect, education of the child, probity, etc., are
suggested by authors. In other matters the curial style and practice consider, for example,
poverty and care of parents as a motivating reason to obtain secularization, etc.ccclxxviii The
motivating reason for granting the rescript of dissolution of non-consummated marriage
is twofold: the fact of non-consummation and “just cause” for granting dispensation, e.g.,
the spiritual good of the parties,ccclxxix serious aversion or dislike of the couple without
hope of reconciliation and a successful marriage, fear of probable future scandal, discord
and quarrel among the relatives, separation or civil marriage of one of the spouses,
etc.ccclxxx
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2. According to canon 63, §3, the motivating reason must be true when a rescript
becomes effective. And a forma gratiosa rescript becomes effective at the moment it is
given. For example, if Titus requests an indult of a domestic chapel because of illness,
and the illness is falsely alleged, the rescript granted in forma gratiosa is null if, at the
moment when the favour was granted, the reason, that is, the illness did not exist.
Similarly, if illness supervened only after the favour was granted, or when the petitioner
made the request, the alleged illness existed, but was completely cured of it at the time of
its concession, the rescript is null.

2. If, for example, a dispensation from a matrimonial impediment is petitioned and

the motivating reason is poverty of the widow who has many children who can be
assisted by the man, the rescript granted in forma commissoria is valid if, at the time of
the petition and concession of the rescript, the alleged poverty actually did not exist, but
supervened before its execution. However, it is null if it supervened after the execution
of the rescript; likewise, it is also null if the reason existed at the time of petition and
concession, but was absent at the time of its execution.ccclxxxi

Canon 64

Presentation of a Rescript from the Apostolic See

Without prejudice to the authority of the Penitentiary for the internal

forum, a favor denied by any dicastery of the Roman Curia cannot be granted
validly by any other dicastery of the same Curia or by another competent
authority below the Roman Pontiff without the assent of the dicastery before
which the matter was initiated.ccclxxxii

Commentary

2. Canon 64 is substantially the same the canon 43 of the 1917 Code and it reflects
R.I. 84, in VIo.ccclxxxiii Canon 43 stated that a favour refused by one Congregation or
Office of the Roman Curia cannot be validly granted by another Congregation or Office,
or by the local Ordinary, though they would otherwise have the power to grant it, without
the consent of the Congregation or Office from which the favour was first asked, without
prejudice, however, to the rights of the Apostolic Penitentiary in matters of conscience.

2. Since the complete reorganization of the Roman Curia the Apost. Const. Regimini
Ecclesiae universae, promulgated on 15 August 1967 by Paul VI,ccclxxxiv the cumulative
competence of the dicasteries of the Roman Curia (can. 360 describes the Roman Curia)
has been suppressed and it is very rarely that more than one department can be
approached for the same favour.ccclxxxv Nevertheless, canon 64 is intended as a safeguard
against any eventuality when the same favour denied by a competent dicastery might be
sought from another dicastery or another person. Thus, it would amount to subreption if
one asks for a favour from one dicastery and when the favour is denied goes to another
dicastery or to the proper bishop without mentioning the prior refusal. Withholding the
truth in this manner would invalidate the granting of the rescript, or if, the prior refusal
 112

were known, and the dicastery or the Ordinary went ahead and granted the favour
anyway, without the consent of the dicastery that first refused the favour, the rescript
would likewise be invalid.

2. It appears that in the following situations a favour refused by one superior may be
validly obtained from another:

a) a favour refused by one dicastery which was not competent in the subject
matter may be validly obtained from another dicastery without mentioning the previous
refusal;

b) a favour requested from one of the dicasteries, is still pending, can be validly
obtained from another another competent authority, without mentioning the petition
already made. It seems one is not obliged to mention the earlier request not yet denied,
when submitting a petition elsewhere. However, canon 139, which is substantially the
same as canon 204 of the 1917 Code, stipulates that as soon as the competent inferior
becomes aware that a petition has already been made to the superior, he should inform
him of the new request.

c) a favour already refused by one dicastery may be validly requested again from
the same dicastery without mentioning the previous refusal;ccclxxxvi

d) in the past it was argued that a favour which the Pope had refused viva voce
could be sought from the Roman Curia or another competent authority without
mentioning the refusal by the Pope;ccclxxxvii however, the same principle stated above must
be applied to this case as well;

e) a favour refused by anyone of the dicasteries or by an authority below the

Roman Pontiff may be asked of the Pontiff himself without mentioning the previous
refusal;

f) a favour refused by the local Ordinary or another competent authority may be

asked of the Holy See without mentioning the previous refusal;

g) Canon 43 of the 1917 Code mentioned only the “local Ordinary” which
implied that a favour refused by one of the dicasteries may be validly obtained from an
Ordinary of a religious institute or from any other Ordinary without mentioning the
previous refusal. This lacuna has been plugged in the revised canon which says: “another
competent authority below the Roman Pontiff.”
2. Canon 64 makes an exception in favour of the Apostolic Penitentiary. It implies
that a refusal of favour by one of the dicasteries or other competent authority does not
prevent recourse to the Apostolic Penitentiary without mentioning the refusal in matters
restricted to internal forum. It is up to the Apostolic Penitentiary to determine in a
particular case whether a favour petitioned in the external forum also has an internal
forum impact.ccclxxxviii Thus, for example, Beste cites a case in which a rescript was
granted on 2 December 1911, for a favour refused by the Sacred Congregation for
 113

Sacraments. The case concerned a petition for dispensation to convalidate a civil

marriage between a widower and the illegitimate daughter of his deceased wife.ccclxxxix

Canon 65

A Request Denied by One Ordinary

§1. Without prejudice to the prescripts of §§2 and 3, no one is to petition

from another ordinary a favor denied by one’s own ordinary unless mention of the
denial has been made. When this mention has been made, however, the ordinary
is not to grant the favor unless he has obtained the reasons for the denial from the
prior ordinary.

§2. A favor denied by a vicar general or by an episcopal vicar cannot be

granted validly by another vicar of the same bishop even if the reasons for the
denial have been obtained from the vicar who denied it.

§3. A favor denied by a vicar general or by an episcopal vicar and

afterwards obtained from the bishop without any mention made of this denial is
invalid. A favor denied by a diocesan bishop, however, even if mention is made
of the denial, cannot be obtained validly from his vicar general or episcopal vicar
without the consent of the bishop.cccxc

Commentary

2. Canon 44 of the 1917 Code corresponds to anon 65 of the new Code. The
substance of both canons is the same excepting the introduction of the Episcopal Vicar
together with the Vicar General.

Canon 65, §1, seems to include both local and personal Ordinaries (cfr. cann. 134, 368).
A person’s proper Ordinary may mean a local Ordinary or personal Ordinary. One
acquires one’s own local Ordinary by reason of domicile (can. 102, §1) or of quasi-
domicile, (can. 102, §2) both of which may be diocesan and/or parochial (can. 107, §1).
As per canon 100, for vagrants or vagi, who have no domicile or quasi-domicile
anywhere, the proper local Ordinary is the Ordinary of the place where they are actually
staying. Members of religious institutes have personal Ordinary determined by their
Constitutions.

Canon 65 has excepted the Roman Pontiff from its prescript. It implies, therefore, that if
a favour is refused by the Pope, it cannot be validly granted by any authority below him
without his permission even though he may concede a favour refused by them without
their consent.

According to canon 65, therefore, a favour refused by one’s own Ordinary cannot be
licitly granted by another Ordinary, e.g., the bishop of another diocese, without
mentioning the refusal; if mention is made, the second Ordinary shall not grant the
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request until he has been informed by the first of the reasons for the refusal. This rule is
intended to protect the authority of one’s own Ordinary only. It does not apply to the
refusal of a favour by a superior who is not the petitioner’s Ordinary.cccxci

2. Paragraphs 2 and 3 of canon 65 mention three cases where validity of rescripts is

involved:

a) a favour is denied by one Vicar (General or Episcopal) and afterwards obtained

from another Vicar of the same bishop even with mention of previous denial: the grant is
invalid; the solution would be to request the favour from the bishop, mentioning the
previous denial;cccxcii

b) a favour is denied by a Vicar and afterwards sought from the diocesan bishop
without mentioning the previous denial: the grant is invalid; the solution is as above;

c) a favour is denied by the diocesan bishop and afterwards sought from one of
his Vicars without bishop’s consent: the favour is invalid; the solution: return to the
bishop, or petition the Vicar with bishop’s consent.

In all these three situations, the law intends to preserve the unity of the episcopal power
and ministry.

2. Paragraphs 2 and 3 of canon 65 concern only the Vicars of the diocesan bishop.
They do not explicitly cover proper personal Ordinaries and their Vicars. However, it is
reasonable to argue by analogy that the same principles are applicable to personal
Ordinaries and their Vicars as well. Thus, for members of clerical religious institutes and
societies of apostolic life of pontifical right the proper Ordinaries are the Major Superiors
and their Vicars. If the principles of canon 65,§§ 2-3 are applied to them, five hypotheses
are likely to emerge:

a) a favour or permission denied by the Superior General and subsequently sought

from his Vicar;

b) a favour or permission denied by the Provincial Superior and subsequently

sought from the Superior General;

c) a favour or permission denied by the Provincial Superior and subsequently

sought from his Vicar;

d) a favour or permission denied by the Vicar and subsequently sought from the
Provincial Superior or from the Superior General;

e) a favour or permission denied by the Vicar and subsequently sought from

another Vicar of the same Major Superior.

In Chiappetta’s opinion, mention should be made of the denial of the favour or

 115

permission when it is sought a second time from another Major Superior or his Vicar,
otherwise it would amount to notable “subreption,” but in virtue of canon 10 the
obligation to do so is only “for the liceity” and not “for the validity” of the concession
unless it has been expressly stated in their constitutions.cccxciii

2. If the clause “motu proprio” (can. 63, §1) was appended to the rescript, it seems
probable that the rescript would be valid, even if the petition was vitiated by subreption
because of failure to mention a prior refusal as required by canons 64 and 65. The reason
is that, when a person with executive authority uses this clause, he is equivalently stating
that he is granting the favour on his own initiative, just as if the petitioner had not asked
for it. The use of this clause is reserved to those who grant rescripts in virtue of ordinary
and not delegated executive power, because it presupposes possession of legislative
power or at least an ordinary faculty to dispense from conditions required by law.cccxciv
This is applicable only when there is subreption and not obreption.

Canon 66

Errors in a Rescript

A rescript does not become invalid due to an error in the name of the
person to whom it is given or by whom it is issued, or of the place where the
person resides, or in the matter concerned, provided that, in the judgment of the
ordinary, there is no doubt about the person or the matter.cccxcv

Commentary

2. Canon 66 of the new Code is substantially the same as canon 47 of the 1917
Code. The principle implied in the present canon states that an error in the text of a
rescript does not affect its validity provided that, in spite of the error, there remains no
doubt about the recipient or about the subject matter of the rescript.

The error mentioned in this canon is only material error or mistakes which occur merely
in the writing of the rescript. The judgment concerning an error in the name of the
recipient or the grantor, or in regard to the subject matter of the rescript, is left to the
Ordinary, that is the local or personal Ordinary. It appears that, where there is only an
error involving the address of the petitioner, it is not necessary to refer back to the
Ordinary.cccxcvi

2. In canon 1052 of the 1917 Code, there was a prescript concerning a rescript
granting dispensation from the impediment of consanguinity and affinity.cccxcvii It stated
that such a dispensation given for some degree is valid although in the petition or in the
concession there is an error concerning the degree, provided that the actual degree is
inferior, or the impediment which was concealed is of the same species and of equal or
inferior degree. This canon has been omitted in the new Code. The new Code does not
distinguish impediments according to grades of superiority or inferiority.
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The prescript of canon 66 is applicable only to rescripts which contain material error. If
the error concerns the single motivating reason, the rescript is undoubtedly invalid as per
canon 63.cccxcviii

2. Canon 66 leaves the task of determining the “error free” status of a rescript to the
Ordinary. In case of substantial doubt, therefore, the judgment of the Ordinary
concerning the identity of the person or the subject matter is to be followed. Is such a
judgment necessary for the validity of the rescript or only for its liceity? There is a
difference of opinion concerning this point as some authors contend that, because the
judgment is an act of the intellect, it can be posited by anyone; therefore it is required
only for its liceity; while the contrary opinion holds that it is required for the validity in
virtue of the will of the legislator as a conditio sine qua non. Regatillo upholds the latter
opinion only in case the rescript is granted in foro externo and not for the one in foro
interno. The rescript granted in foro interno need not be presented to the Ordinary,
provided that the error can be corrected by the one to whom the rescript is granted. Nor
is there any necessity to have the judgment of the Ordinary if the error is so manifest that
there is no reason for doubt, because law does not prescribe useless matters; nor in case
of an error in the place, because it does not have much relevance anytime.cccxcix When
there is doubt concerning the identity of the person or subject matter recourse should be
made to grantor for clarification.

Canon 67

§1. If it happens that two contrary rescripts are obtained for one and the
same thing, the particular prevails over the general in those matters which are
particularly expressed.

§2. If they are equally particular or equally general, the earlier in time
prevails over the latter unless there is express mention of the earlier one in the
later one or unless the person who obtained the earlier one has not used the
rescript out of malice or notable negligence.

§3. In a case of doubt whether a rescript is invalid or not, recourse is to be

made to the one who issued it.cd
Commentary

2. The prescripts of canon 67 concern situations when there is conflict between

rescripts. The first principle to be followed in this situation is: if two rescripts pertaining
to the same matter are contradictory, the particular rescript prevails over the general one
in the points that are expressed as particular. It does not matter whether the particular
rescript was issued before or after the general one. If it was granted before the general
one, then it falls under the principle that a general law or provision does not derogate
from the former particular one unless an express provision is made to that effect. If it
was granted after the general one, then it is considered as an exception to the latter,
through the application of the principle: “General law is specified by particular law” (R.I.
34, in VIo).cdi
 117

A general rescript is one that contains a favour including all cases of a given class; a
particular rescript is one that concerns only one case or a few cases.cdii

Contradictory rescripts can be given by the same superior or by different superiors, either
to the same or different subjects. Canon 67 seems to refer only to the conflict arising
from several contradictory rescripts granted by the same superior to different subjects.cdiii

2. If the contradictory rescripts are given by the same superior to the same subject,
the more favourable of the two would prevail because, it shows greater benevolence; if
the later one is less favourable, it must be considered to have been given out of
forgetfulness of the former one, unless it contains a clause revoking the former.cdiv As
mentioned earlier, if contradictory rescripts are given by the same to several:

a) the particular one prevails over the general in those matters which are
mentioned in a particular way. The example of this situation would be: Peter obtains a
rescript by which he is granted the right to the first vacancy in cathedral “A” (this is a
general rescript). Paul receives another rescript by which he is granted the right to the
first vacancy which is enjoined with dignity, e.g., canon of the cathedral, in the same
church. In this situation, the latter rescript prevails, so that if the first vacancy is enjoined
with dignity (cathedral canon), the office should be conferred on Paul. If the vacant
office is without any specific honour attached to it, it must be offered to Peter.cdv
b) if they are equally particular or general, that which is first in the order of time
prevails over the later one, unless the later contains a derogatory clause with respect to
the former, or the earlier recipient fails to use his/her rescript through malice or notable
negligence. The priority of time should be taken from the moment of the grant of the
rescript, whether it be in forma gratiosa or in forma commissoria, and not from the
moment of its execution. This is clear from the context of the canon and from common
opinion of authors. For, even in the case of a rescript granted in forma commissoria, the
recipient acquires the right to that rescript before its execution which he cannot be
deprived of even if the later one is granted in forma gratiosa. If both are granted in
forma commissoria, and the second one has not only been committed to execution before
the first, but also has been rendered effective, the second seems to be preferred, because
the recipient is already in possession of the favour granted.cdvi

2. A recipient of a rescript is considered to have failed to use it through malice when

he/she does not use it in order to deceive another. An example of this would be
intentional omission to present the rescript to the executor (can. 69) or to proper Ordinary
(can. 68). In this case the second rescript prevails over the first (can. 67, §2).cdvii Notable
negligence in the use of a rescript has been estimated by some to be one year, but
circumstances, excusing causes, etc., would have to be taken into consideration. It is not
easy to resolve this issue. The matter should be left to the prudent judgment respectively
of the Ordinary or of the judge.cdviii

2. A difficulty arises in determining the temporal priority of rescripts when they are
issued on the same day. In such a situation the rescripts themselves may not contain any
 118

indication of the moment at which the signature was fixed. In canon 48, §3 of the 1917
Code, it was stated: “If two rescripts were issued on the same day, and it is not evident
which of them was issued first, both are invalid, and, if the occasion warrants recourse
must again be made to the grantor.” Commentators maintained that probably only
rescripts issued by one and the same superior or by superiors of equal rank should be
governed by the rule of this canon. What if the rescripts are issued by grantors of
different rank? Some authors maintained that in such a case, the rescripts issued by the
superior of higher rank should prevail, while others would not accept this position.cdix

This provision of canon 48, §3 of the 1917 Code has not been retained in the new Code.
In its place, canon 67, §3 states that in doubt as to whether a rescript is valid or not,
recourse is to be made to the issuing authority. This provision should be applied to cases
when two equally general or specific rescripts are issued on the same date. However, it
may happen that recourse is no longer possible because one of the rescripts has already
been executed with the result that its beneficiary is possessed of an acquired right, while
the other grantee, through negligence, has lost his/her right.cdx

Canon 68

Rescript from the Apostolic See

A rescript of the Apostolic See in which no executor is given must be

presented to the ordinary of the one who obtained it only when it is prescribed in
the same letter, or it concerns public matters, or it is necessary that conditions be
verified.cdxi

Commentary

2. According to canon 68, only rescripts granted in forma gratiosa fall within the
scope of this norm. As already mentioned earlier, a rescript in forma gratiosa is valid and
effective at the moment it is issued, i.e., the moment when the signature of the grantor is
fixed. The rescripts granted by the Holy See in forma gratiosa must be presented to the
Ordinary of the recipient in three situations:

a) when the rescript itself prescribes presentation to the Ordinary, for whatever
reason, e.g., out of deference to the Ordinary by the Holy See, which is sensitive to
episcopal jurisdiction;

b) when there is question of public matters; a matter of public concern is one

which, at least in some measure, pertains to public welfare, e.g., faculty given to a priest
to confirm;

c) when it is necessary to verify certain conditions, for example, a person receives

an indult from the Holy See to establish a domestic chapel in his/her home; the condition
would be that such a chapel be suitably constructed; in this situation, the rescript
containing the indult must be presented to the Ordinary (cfr. can. 1224).cdxii
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2. The presentation is prescribed in this canon only for the liceity of the grant, unless
the rescript expressly requires presentation ad validitatem.

The presentation has the effect of officially informing the Ordinary that the favour in
question has been granted. The Ordinary places his visum on the rescript together with
the date and his signature.cdxiii

Sometimes a rescript may contain the clause de consensu ordinarii; in such a case, the
Ordinary’s consent is required for its lawful use, but not for the validity of the rescript.

Canon 69

Time for Presenting a Rescript to an Executor

A rescript for whose presentation no time is specified can be shown to the

executor at any time, provided that there is neither fraud nor malice.cdxiv

Commentary

2. Canon 52 of the 1917 Code had the prescript equivalent to the one in canon 69 of
the new Code. The former stated: “Rescripts for the presentation of which no definite
time is specified, may be offered to the executor at any time, provided delay is owing
neither to fraud nor to malice.” The rule of this canon did not make a distinction between
a rescript of justice or of favour, in which the intervention of an executor was required.
Canon 69 of the new Code is substantially the same and is applicable to all rescripts
which require their presentation to the executor.

2. Rescripts given in forma commissoria must be presented to the executor for their
execution. They become effective only at the moment of execution. Prior to the 1917
Code rescripts of justice had to be presented to the executor within a year from the date
of receipt.cdxv Canon 52 of the 1917 Code and canon 69 of the new Code do not have
such a time limit. It appears that the time of presentation is left to the discretion of the
recipient. However, the rescript itself may stipulate the time limit for presentation. The
grantor should clearly specify the condition attached. When a time limit has been fixed
for the execution of a rescript as an essential condition, its lapse without carrying out the
execution would disqualify the executor from executing the rescript. Even though the
rescript itself may remain valid, it will be necessary to obtain another mandate.

2. Fraud and malice which the present canon speaks about refers to voluntary delay
in presenting a rescript for execution in order, for example, to avoid the consequences of
its application. Or again, a petitioner may wish to delay execution in order that the
reasons for the petition, not realized at the time of concession, be true at the time of
execution (as mentioned in can. 63, §3); for example, a deacon seeks a favour which
requires the Order of priesthood for its valid use and so delays its presentation for
execution till after priestly ordination.
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2. To determine if the delay in the presentation of a rescript of favour involved fraud

or malice, the judgment of the executor should take into consideration the circumstances
of the person involved, the distance he/she was required to travel, and the nature of the
subject matter. As mentioned earlier, the pre-1917 Code legislation required as a general
rule the presentation of rescripts of justice to the judge within a year; and, if the
presentation was delayed beyond this term, fraud and malice were presumed.cdxvi
Commenting on canon 52 of the 1917 Code, authors maintained that if a rescript of
justice was not presented within a year, fraud and malice could be presumed. This view
is no longer applicable to canon 69 of the new Code. Therefore, it does not seem
appropriate to apply such a presumption. Nevertheless, the executor may use his/her
discretion in the matter.

2. What would happen if there is fraud and deceit in the delay in presenting the
rescript to the executor? It appears that, if fraud and deceit are proved, the beneficiary of
the rescript can be deprived of his/her right to use the rescript. If the rescript was
executed anyway, it seems it would be valid, unless, in accordance with canon 39, a
conditional clause had been attached to the rescript itself.

Canon 70

Discretion Granted to Executor

If in a rescript the granting of a favor is entrusted to an executor, it is up to

the prudent judgment and conscience of the executor to grant or deny the
favor.cdxvii

Commentary

2. The present canon 70 corresponds to canon 54, §2 of the 1917 Code. A voluntary
(free) executor is in question here. A voluntary executor can take cognizance of the cause
and grant the favour in virtue of jurisdiction delegated by the Superior. Even a voluntary
executor cannot grant or refuse the favour arbitrarily, but the granting or refusing must be
based on executor’s conscientious judgment after a careful examination of the truth of the
petition. Moreover, the favour is to be granted or refused in its entirety, as an indivisible
unit, unless the rescript contains a clause providing otherwise.cdxviii The notions of
necessary and voluntary executor have been dealt with at length in our comments on
canon 41.

Canon 70 simply states that a voluntary executor is given the faculty, e.g., to dispense, by
the grantor to grant or deny the favour requested. For example, the Holy See may grant
someone a rescript, but entrust its execution to the discretion of the diocesan bishop. On
the other hand, a necessary executor is likewise given a faculty which should be used by
order of the grantor. There is no freedom in the latter situation.
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Canon 71

Obligation to Use a Rescript

No one is bound to use a rescript given only in his or her favor unless
bound to do so by a canonical obligation from another source.cdxix

Commentary

2. Canon 69 of the 1917 Code stated: “No one is obliged to use a privilege given for
personal benefit alone unless the obligation to use it arises from some other source.” As
is clear from this canon, its prescript applied only to a privilege. In the new Code, this
prescript does not appear in the section on privileges, rather it is placed within the
common norms governing rescripts because a privilege is generally conveyed through a
rescript. According to the common interpretation of canon 69 of the preceding Code: a)
the use of a privilege was free when it was granted in favour of a particular person; b) it
was obligatory if given in favour of a community or a group; c) the use of a privilege
granted in favour of private persons could become obligatory from some other sources,
namely out of charity or tacit pact; e.g., a confessor who has received the faculty to
absolve from a reserved censure, would be obliged to exercise this faculty on behalf of a
penitent who sought his ministry. It was also implicit in canon 69 of the 1917 Code that a
private person was obliged to use a privilege which he/she had received for the benefit of
the community or the group to which he/she belonged.

2. The above principles seem applicable to canon 71 of the new Code. Accordingly,
therefore, a person who has received a rescript for personal benefit only, he/she has the
right but not the obligation to use it. Nevertheless, as mentioned above, its use may
become obligatory for some other reason, namely: a) out of charity, if the failure to use
the rescript would be prejudicial to one’s neighbour; or b) out of justice, if common good
(e.g., good of the parish or of a faith community) is involved.

Canon 72

Extension of an Apostolic Rescript

Rescripts granted by the Apostolic See which have expired can be

extended once by the diocesan bishop for a just cause, but not beyond three
months.cdxx

Commentary

2. Canon 72 is new. It has its origin in Faculty I, 1 of the motu proprio Pastorale
munus (Faculties and Privileges Granted to Diocesan Bishops), promulgated on 30
November 1963 by Paul IV. This faculty stipulated: “To extend for a just cause but not
for a period exceeding a month, the lawful rescripts or indults which were granted by the
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Apostolic See and have expired without petition for their renewal having been made in
due time to the same Apostolic See. The obligation remains, however, to have recourse
to the Apostolic See for the favour or for the receipt of an answer if petition for renewal
has already been sent in.”cdxxi This faculty was granted to Papal legates (Nuncios, Pro-
nuncios, Delegates) even prior to Pastorale munus.cdxxii

Canon 72 allows prorogation of a rescript for “three months” compared to “one month”
provided in Pastorale munus. The faculty to proprogue belongs only to the diocesan
bishop and those equivalent to him as per canons 368, 382, §2, etc., and not to other
Ordinaries (cfr. can. 134, §1). This interpretation would naturally exclude the Vicar
General, the Episcopal Vicar and personal Ordinaries (religious) from this provision.

As was the case with the faculties of Pastorale munus, the faculty to extend (prorogue)
could be delegated to Vicars General, Episcopal Vicars, Coadjutor, Auxiliary Bishops,
Chancellors, etc.cdxxiii This is also in keeping with canon 137, §1: “Ordinary executive
power can be delegated both for a single act and for all cases unless the law expressly
provides otherwise.”

2. May a bishop, invoking canon 72, extend a rescript granted to him personally? It
seems, yes, because executive power may be used in one’s own favour (in proprium
commodum).cdxxiv Canon 91, for example, states that those who have the power of
dispensing can exercise it in their own favour.

2. The use of the faculty granted by canon 72 requires a “just cause.” The
expression “just cause” can be quite broadly interpreted in the sense of “the spiritual good
of the faithful,” either the good of the petitioner or of others in whose favour the rescript
may be used. In speaking of the motive for dispensing, Paul VI, in his motu proprio De
Episcoporum muneribus, 15 June 1966, said: “The spiritual good of the faithful is a
legitimate cause for a dispensation.”cdxxv This has been reiterated in canon 87, §1: “A
diocesan bishop, whenever he judges that it contributes to their spiritual good, is able to
dispense the faithful [...].”

Furthermore, it is necessary that an apostolic concession has already ceased before the
diocesan bishop can extend it. In other words, he cannot extend an apostolic concession
which is still in effect. This is the opinion expressed by McIntyre: “If necessary, he
should be able to renew the favor within the canonical time provided. This means that
the bishop does not anticipate the expiration. His decree (c. 62) takes effect after the
expiration date, thereby ensuring a duration of three months. The current law uses three
months as normative ...”cdxxvi But Chiappetta says that the extension of a concession for
three months begins from the moment the bishop grants it and not from the day of expiry
of the rescript.cdxxvii
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Canon 73

Revocation of Rescripts

Rescripts are not revoked by a contrary law unless the law itself provides
otherwise.cdxxviii

Commentary

2. Canon 60, §1 of the 1917 Code stated: “A rescript revoked by a special act of a
superior, perdures until the revocation is notified to the one who had obtained it.” This
principle implied that the person who had received a rescript could use it until he/she
received notification of its revocation.

Canon 60, §2 of the same Code prescribed: “No rescripts are revoked by a contrary law,
unless the law itself expressly provides otherwise, or the law was made by the superior of
the one who granted the rescript.”

Thus, for example, in virtue of canon 60, §2 of the 1917 Code, a rescript granted by the
Holy See was not revoked by a general law, even if it was directly contrary to it, unless
this fact was expressly stated by words, such as: “privileges and any rights not
withstanding,” but not “anything contrary not withstanding.”cdxxix But the second part of
the same paragraph seems to have implied that a rescript granted by a local Ordinary
could be implicitly revoked by a contrary pontifical law or by a contrary law of a plenary
or a provincial council. But, this is no longer valid because the clause: “or the law was
made by the superior of the one who granted the rescript,” has been eliminated in canon
73 of the new Code. Therefore, even a law passed by a superior which is contrary to a
rescript granted by a lower authority, unless it expressly includes a clause to the contrary,
does not revoke the rescript. In principle the law looks to the future (can. 9) and
generally safeguards acquired rights (cann. 4; 36, §1; 38).cdxxx

Canon 4 of the present Code retains the privileges granted by the Apostolic See
unaffected by the laws of the new Code unless its canons have expressly revoked them.
This strengthens the principle that a rescript is not revoked by new law, even when it is
contrary to the rescript, unless the law expressly revokes rescripts.

2. Canon 73 is concerned with extrinsic cessation of a rescript. Canon 46 states that

an administrative act does not cease on the expiry of the authority of the person issuing it,
unless the law expressly provides otherwise. Thus, a rescript granted by a bishop would
not cease at the moment of his death, unless the rescript itself contained a “ad
beneplacitum nostrum” clause, or a law, universal or particular, has an express contrary
provision.

Canon 47 prescribes that revocation of an administrative act by another administrative act

of the competent authority takes effect only from the moment at which the person to
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whom it was issued is lawfully notified. This principle is applicable also to a rescript
since it is a singular administrative act. As far as the competent authority mentioned in
this canons is concerned, as already seen in our comments on canon 47, such an authority
could be the grantor of a rescript, his superior, or successor in office. Official notification
of revocation to the recipient is necessary for its efficacy. Until the recipient receives such
a notification, he/she can continue to use the rescript.

2. Thus, canons 46 and 47 deal with extrinsic revocation of singular administrative

acts in general, while canon 73 is concerned with the extrinsic revocation of rescripts.
According to canon 73, therefore, a law, irrespective of its source, which is contrary to a
rescript does not imply its revocation. In order that a rescript be considered revoked, the
law must expressly state: “all rescripts are hereby revoked.” When revocation occurs
through a contrary law, it becomes effective only after the time of the vacatio legis has
been completed. The promulgation of such a law would be the official notification of the
revocation to the recipient and it is not retroactive unless the legislator states
otherwise.cdxxxi

2. Intrinsic cessation of a rescript may take place in many ways: when the conditions
are fulfilled (e.g., a rescript is effective until the fulfillment of a condition terminating it:
“I grant you this favour until new legislation on the matter is promulgated”); when the
determined time for which they were granted has lapsed; in case of a personal rescript,
when the beneficiary dies; in the case of a rescript given for the benefit of the recipient,
when the latter renounces it.cdxxxii

Canon 74

Proof of an Orally Granted Rescript

Although one can use in the internal forum a favor granted orally, the
person is bound to prove the favor in the external forum whenever someone
legitimately requests it.cdxxxiii

Commentary

2. The 1917 Code did not contain any regulation on viva voce rescripts. However,
canon 79 of the same Code stipulated that although privileges orally granted by the Holy
See may be used in the internal forum, no one may claim the use of any privilege against
anyone in the external forum, unless he/she can prove that the privilege was legitimately
obtained. In the new Code, this prescript is not found in the section on “Privileges,” but
it appears as a general principle applicable to rescripts because, according to canon 59,
§1, it is through a rescript that as privilege, dispensation or other favour is granted at
someone’s request.

2. Oral grants are not something new in the Church. Concessions of privileges or
other favours have been granted by the Pope or by some competent prelate of the Roman
Curia by word of mouth, but not in writing. After the foundation of the mendicant
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Orders, for example, a number of oral concessions were made to religious to avoid the
publicity of written statements. Such grants, therefore, were not restricted to the internal
sacramental forum. Some of them were probably granted for extra-sacramental forum,
and also for external forum as long as no one opposed their use. The principle underlying
this practice was that the foundation of a privilege (granted via a rescript) is the consent
of the grantor and not the proof of its grant.cdxxxiv

Should a person claim to have received a favour from a competent authority, he/she
should prove it in the external forum whenever this is lawfully required. For example, an
alcoholic priest has received an indult directly from the Holy See to celebrate mass with
grape juice; and this has been granted to him only orally. He can validly and licitly
celebrate mass with grape juice in virtue of this indult. But should his Ordinary or some
other Ordinary demand proof of such a grant, he must produce it to licitly exercise his
right in the external forum.

2. The proof of an oral grant can be had through witnesses who were present when
the favour was granted, proven prescription, authentic document made concerning the
oral grant,cdxxxv the word of the grantor. Nevertheless, the safest way to avoid such a
problem is to issue in writing (can. 37) an administrative act which concerns in any way
the external forum.

Canon 75

Norms Governing Privileges and Dispensations

If a rescript contains a privilege or dispensation, the prescripts of the

following canons are to be observed.cdxxxvi

Commentary

2. Rescripts can contain administrative acts, such as grants of favours, faculties,

permissions, etc., besides privileges and dispensations. Since privileges (cann. 76-84)
and dispensations (cann. 85-93) constitute important institutes in the Church’s juridical
system, specific prescripts concerning them are laid down in the Code for their juridic
security. A dispensation is always a favour granted contrary to the law, and is generally
of a temporary nature; whereas a privilege is also a favor but it may be either contrary to
or outside the law, and is presumed to be permanent. These specific singular
administrative acts (rescripts) are governed by the canons that follow.

CHAPTER IV

PRIVILEGES

2. The “institute of privileges” has deep roots in the life of the Church. Its origins
are found in Roman Law where it was first understood as any rule that was not common,
and later as a norm by which a particular and favourable right was granted.cdxxxvii
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According to Gratian, privilege is “a private favourable law,” (“lex privata favorabilis”),

a definition he had borrowed from St. Isidore of Seville. According to this definition, a
privilege is an objective and stable norm of action, and it is given to determinate persons
or to a community or portion of a community, and it is a favourable law because it grants
a favour.cdxxxviii

In a democratic and egalitarian society, one is likely to be tempted to question the very
relevance of institutes like privileges. Is it possible to reconcile the principle of
fundamental equality based on human dignity with such anachronistic or outdated
institutes? Does not legal provision of privileges to certain types of people in a society
introduce inequality and discrimination among its members? In light of this objection,
the Church could be easily seen as trying to maintain a legislation that is bent on
supporting such an antiquated and discriminatory system. Is this objection or argument
reasonable?

Chiappetta responds to this objection saying that such an accusation is unjust and
baseless, because it does not take into consideration the particular nature and mission of
the Church, a spiritual communion, with its supreme mission rooted in the salvation of
souls (can. 1752). With privileges, as with dispensations, the Church does not intend to
grant some prohibited discriminatory favours to a chosen few, but it strives to provide
more efficacious means suited to particular situations and concrete needs of each person,
to whom the law, because of its general character, is not able to offer an adequate
response. The principle of radical equality of the faithful solemnly affirmed by Vatican II
(LG, 32, 3) is thus safeguarded. At the same time, the institute of privileges testifies to a
special characteristic of the canonical system, that is, its flexibility and adaptability to
concrete human situations. In reality, Chiappetta suggests, privileges and dispensations
entail a necessary integration of law and also constitute an expression of the deeply
spiritual function and pastoral sensibility of the Church.cdxxxix In concluding his in-depth
study on the use of the term “Privilege,” A. McCormack expresses the same view in
following words: “Seen in the proper light, it is an institutionalized form of canonical
equity by which the Church allows for the discretionary exercise of executive authority in
order to provide for circumstances not foreseen by the supreme legislator. Through it the
canonical system is rendered flexible and adapted to the concrete demands of daily life.
Even though privileges are now seen as favours given primarily for the benefit of certain
persons and not as concessions for the common good, every ecclesiastical administrator
of the modern law will nevertheless be constrained to evaluate them in light of their unity
in promoting the apostolate and building up of the body of Christ.”cdxl One of the
consultors of the Code Commission stated that “privileges” is one of the means for
providing for particular cases not foreseen by the law.cdxli Therein lies the salutary
dimension of the institute of privileges.

In the session of the coetus held in February 1968, there was a lengthy discussion on De
recognoscendis normis generalibus Codicis, particularly on the question concerning the
relevance of retaining in the new Code the institute of privileges.cdxlii The final decision
was to retain the institute with fundamental changes in the norms pertaining to it.
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The new Code has nine (9) canons in Chapter IV. And these deal with the following
issues:

- Notion and distinction (can. 76)

- Interpretation of a privilege (can. 77)
- Stability and perpetuity of a privilege (can. 78)
- Revocation of a privilege (can. 79)
- Legitimate renunciation of a privilege (can. 80)
- Cessation of the granting authority (can. 81)
- Legitimate prescription of a privilege (can. 82)
- Lapse of time and completion of number of cases (can. 83)
- Privation of a privilege for serious abuse (can. 84)

Canon 76

Notion and Distinction

§1. A privilege is a favor given through a particular act to the benefit of a

certain physical or juridic person; it can be granted by the legislator as well as by
an executive authority to whom the legislator has granted this power.

§2. Centenary or immemorial possession induces the presumption that a

privilege has been granted.cdxliii
Commentary

2. In a broad sense, a privilege had been defined in the past by authors as a

generally established law by which some prerogative is granted to a certain person
or category of persons, things or places. In this sense, a privilege is properly a
law which is perpetual in character and subject to the same rules applicable to
law. In this category were the privileges of bishops (can. 349), of clerics (cann.
119-123), of cardinals (cann. 239), of religious (cann. 615-616), of the 1917
Code. These are no longer presented in the new Code as “privileges,” but as
faculties or rights granted by the legislator in view of ecclesial needs, as particular
laws integrated into the common law. The privileges of clerics, such as privilege
of the canon, of forum, immunity and competence have been suppressed because
they no longer reflect the contemporary mentality of the people. Chiappetta
observes that there is only a trace of the privilege of the canon in canon 1370
where mention is made of the penalties for physical violence committed against
the Roman Pontiff, against a bishop, against a cleric or a religious.cdxliv

The broad concept of privilege promoted in the 1917 Code had generated intense debate
during the revision process. The coetus involved in the revision of general norms
focussed on these issues early on and a summary of the debate that ensued was reported
in 1971. The following is that summary.

2. The proposed norms on the institute of privileges are of great importance and are
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much more clear than those found in the preceding legislation. According to the 1917
Code, privileges could be acquired not only through a direct concession of a competent
authority and through communication, but also through law, legitimate custom or
prescription (can. 63 CIC 17). This provision gave rise to many problems, particularly in
defining the very notion of privilege, and at times it even led to confusion. The so-called
privileges granted through law, can be called such only in a material sense, because they
create a favourable status; formally, however, such privileges are laws, that is, special
laws, binding certain category of people, granting a favour or inducing a favourable
status. Since such privileges are formally laws, they are governed by the norms on laws.
Similarly, the so-called privileges introduced though custom, are formally customs;
therefore, although favourable, they are governed by the prescripts of the Code on
customs. Those privileges which are acquired through prescription are indeed acquired
subjective rights and, therefore, they must be considered regulated by prescripts which
concern subjective rights acquired through legitimate prescription. As far as privileges
acquired through communication are concerned, according to the unanimous opinion of
consultors, they should be suppressed, or rather such a mode of acquiring a privilege
should be suppressed.

Therefore, in a properly juridic sense, there remain only those privileges conceded
through a particular act of a competent authority, that is to say, granted through a
competent administrative or executive authority in favour of certain physical or juridic
persons. Hence, norms should be established only on those privileges and situated in the
revised title on privileges. Laws and customs through which a favour is granted or
favourable status is introduced for the benefit of all persons of a particular category,
because they are formally laws and customs, should be governed by the norms on laws
and custom. Therefore, the term “privilege” would mean only that privilege which is
granted by a competent authority through a particular act, that is, through an
administrative or executive act.cdxlv

2. Canon 76, §1 of the new Code introduces a profound change in the norms
governing privileges. First it defines the notion of a privilege in the strict sense as a
particular concession of a competent authority and then it integrates its generic and
specific elements. The generic elements are: a privilege is a favour granted for the
benefit of determined persons, physical or juridic, through a particular concession of a
competent authority. Its specific elements are: the favour is granted per se by legislative
authority, and also by an executive authority (CCEO says “anyone” and not necessarily
“an executive authority”) to whom the legislator has given such a faculty.

2. In light of these characteristic elements, a privilege is distinguished from: a) law

by reason of its essentially private character relative to its recipient, namely determined
persons, physical or juridic; b) singular precept: it does not impose an obligation or
prohibition (can. 49), but grants a favour; c) dispensation: by reason of its stable
character (a privilege creates an objective norm proper to the person), which creates a
new juridic disposition in the beneficiary, while dispensation makes the efficacy of
common law cease in a particular case without creating a new norm; d) prescription: this
institute enables acquisition of subjective rights as determined in law, but it does not
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create an objective norm as a privilege does; e) rescript: this is only a vehicle through
which a privilege, a dispensation or favours in general are granted (can. 59, §1).cdxlvi

In the above-mentioned study, McCormack provides definitions of some interrelated

canonical institutes which are worth noting for clarification of concepts.cdxlvii

Indult is an authorization (licentia) or permission. In the present Code, authorization is

understood as an administrative act which removes a limitation placed by a juridical
norm and accords the recipient the capacity to act legitimately. It may allow an action
which a prohibitive law otherwise forbids or it may allow an action which a permissive
law grants provided that this permission is obtained. In both cases it accords the ability
to act secundum legem.

Faculty is a term which seems to have multiple connotations in the present Code. In a
generic sense a faculty is a physical or moral possibility to act as in the case of the
opportunity for self-defence (cann. 695, §2, 697, §2), for correcting juridical evidence or
responding to a libellus (cann. 1569, §1, 1659, §1). It may also mean a personal ability,
an intellectual or even financial capacity (cann. 779, 1271, 1300). It can also have the
meaning of an authorization or permission. It retains this meaning regarding certain
juridical acts which amount to rights or authorizations which may be transferred from one
private individual to another as in ecclesiastical elections or in trial with substitution of a
procurator. In the context of sacramental discipline, faculty is also a synonym for an
“authorization” or “permission.” For penance, confirmation and marriage, the new Code
uses the term not in the sense of a transmission of a power but rather to indicate an
authorization or control over the valid exercise of the power of orders. According to its
use in the new Code, however, the primary use of the term faculty (facultas) concerns the
concession of the power of jurisdiction ab homine and not powers attached to an office or
conceded by the law itself. This regards the delegation of the executive power of
governance by particular acts on the part of competent authority. “Habitual faculties”
are, therefore, governed by the provisions concerning delegated power. In three
exceptional cases the term is used for ordinary powers (cfr. cann. 447, 667, §4, 690, §2)
to indicate a prerogative or right which “belongs” to an office.

Privilege is a permanent right given to particular persons. It consists in the relaxation of

a merely ecclesiastical law on the part of an executive authority competent to issue this
administrative act. It is presumed to be perpetual unless the contrary is proven. It
improves the juridical condition of the recipient with respect to what it would otherwise
have been according to the general law. It increases the recipient’s field of action by
granting a right or personal capacity to act contra legem - to do what the law forbids or
omit what the law requires. Like a dispensation, it consists in the “removal or suspension
in particular cases of the obligation or efficacy of ecclesiastical law which otherwise
remain in place. The concession is primarily for the benefit of the recipient and it does
not include the mandate or delegation of public power in the Church.” With this
argument, McCormack summarily discards the relevance of praeter ius privileges which
are a fact of life in canonical system.cdxlviii
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A privilege differs from an acquired right in that it is always a concession and not the
result of a series of acts or a contractual transaction. If given to a person it follows
him/her everywhere even though it may not be usable everywhere. It is presumed to be
perpetual, enduring as long as either the physical or juridical person or thing to which it
was directly attached should endure unless it is proven that the favour was given for a
limited period or with the clause “at our pleasure” or another equivalent expression.

Dispensation is similar to privilege according to the present legislation. In the new

Code, both privileges and dispensations are administrative acts granted by executive
power. Both concessions confer a right or capacity to act counter to some law and the
object of both is “a merely ecclesiastical law” - one which commands or forbids. The
distinction between the two consists in the stability which a privilege enjoys. A privilege
lasts independently from the cause for which it may have originally been granted. A
dispensation is conceded with the implicit or explicit conditions that it will last as long as
the cause (causa motiva) may remain. When the reason for the dispensation is no longer
applicable, the dispensation comes to an end. Any privilege, including one given for a
limited time or at the pleasure of the donor, will continue to exist even though the cause
for which it was given might cease to exist during the period for which it was conceded.

These definitions are the result of a serious critical study by McCormack. The definitions
provided by him seem to have solid basis in traditional commentaries as well as in the
thinking that operated during the revision of this institute in particular.

2. According to traditional terminology, a privilege can be:

a) with respect to the law: against the law (contra legem), inasmuch as the
privilege contravenes a universal or particular law, e.g., the permission to celebrate Mass
using unfermented grape juice instead of wine as required by canon 924, §3;cdxlix beside
the law (praeter legem) inasmuch as the privilege goes beyond what the law concedes,
e.g., the faculty granted to canons of the chapter to wear special choral habit.

b) with respect to the immediate subject: personal, if granted to a person or

persons, e.g., the privilege of celebrating Mass outside a church on a habitual basis; real,
if granted to a thing directly and immediately, e.g., to a chapter of canons in a cathedral,
to an office, function, etc. (real privileges are in reality granted to persons via a thing);
local, if granted to a place, e.g., to a Marian shrine (local privilege is also a real
privilege). A privilege granted to a community is generally considered personal; for some
it could even be mixed.

c) with respect to the object: favourable, if a privilege merely confers a favour

without being prejudicial to the rights of others, e.g., a temporary Apostolic Administrator
is given the favour of wearing episcopal insignia on a permanent basis; odious, if a
privilege affects the rights of others, or places a burden on them, e.g., exemption from
diocesan taxes.
d) with respect to the obligation engendered: gratuitous, remunerative and
onerous or contractual inasmuch as a privilege is either a free concession made out of
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pure generosity or gratitude, or granted in virtue of a contract sometimes even with an

obligation in justice on the part of one or the other party.cdl

2. Canon 76, §1 explicitly states that the source of a privilege is the legislator
himself. Others can have the faculty to do so only by virtue of delegation from the
legislator. In the Church the primary source of privileges is the supreme legislator, that
is, the Roman Pontiff, who can grant privileges contrary to and beyond not only the
universal law but also the law of every subordinate legislator. A subordinate legislator
can grant privileges outside the universal law within the sphere of his competence or
jurisdiction. But he may grant privileges both contrary and beyond the laws enacted by
himself or his predecessor.

2. The supreme legislator can grant any subordinate legislators and executive
authorities the faculty to issue privileges both contrary to and beyond universal and
particular laws. Subordinate legislators can grant the same faculty to those having
executive authority in virtue of canon 135, §2. According to this canon, the legislative
power enjoyed by a legislator below the supreme authority cannot be delegated unless the
law explicitly provides otherwise. Canon 76, §1 seems to fall under the nisi clause of
canon 135, §2. This would mean that a legislator of whatever rank can authorize those
with executive authority to grant privileges within the limits of his jurisdiction. This
argument seems to imply that the act of granting a privilege is a derogation from the law,
therefore, it is reserved to the legislator. But McCormack maintains that the act of
conceding a privilege is a derogation of the law in a particular case, and it is done in
virtue of executive power, because by definition a privilege is a singular administrative
act and, therefore, it is an act of executive and legislative power. According to him, even
derogation from a law in a particular case can be done by one who enjoys executive
power in accord with the norm of law. Canon 76, §1 explicitly reserves the power to
grant privileges to the legislator and the legislator can delegate this power to the one who
has executive power.cdli

This reasoning is also confirmed by Chiappetta. He says that by the very fact that only a
legislator or his delegate can grant a privilege does not mean that the concession of a
privilege is a legislative act. It is an administrative act enacted by a legislator by the use
of his executive power. The three powers involved in ecclesial governance are not clearly
distinguishable in the holder of the power of governance. It is an administrative act
posited in a particular case. This note of “particularity” specifies the act.cdlii

2. As indicated above, the 1917 Code had prescribed several means through which
privileges could be acquired, namely direct concession of a competent legislative
authority, by communication (cann. 64-65), by legitimate custom or prescription (can. 63,
§1), and by law (cann. 118-123; 239, etc.). But the new Code ties a privilege essentially
to a particular act of a competent authority (an administrative act) in favour of determined
persons, physical or juridic.cdliii

2. The form in which a privilege is granted is not determined in canon 76, but that is
governed by canon 51. Generally, the grant must be in writing.
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In the past, the more common manner of acquiring privileges has been direct concession,
which is effected either motu proprio or in response to a request, in either case orally or
through a written document. Confirmation of a privilege in forma specifica or ex certa
scientia was equivalent to direct concession. Confirmation of this kind conferred a new
right and had the quality of a grant de novo giving validity to privileges which would
otherwise be null. On the contrary, confirmation in forma communi left matters as they
were and introduced no new right.cdliv These forms may still be used even though there is
no evidence of this being done since the promulgation of the new Code.

2. Canon 63, §2 of the 1917 Code stated that centenary or immemorial possession of
a privilege created a presumption of the grant. There is no change in this prescript given
in canon 76, §2 of the new Code. This presumption as a matter of fact frees the possessor
of the privilege from the burden of proving it, but since it is a mere presumption of law, it
ceases if the existence of the privilege is disproved. Immemorial possession is that
whose origin is unrecorded but which the present generation knows to have been in
existence for at least forty years from their own experience or according to the testimony
of their elders. Centenary possession is that which has been proved to have been in
existence for a century without interruption.cdlv

Canon 77

Interpretation of a Privilege

A privilege must be interpreted according to the norm of can. 36, §1, but
that interpretation must always be used by which the beneficiaries of a privilege
actually obtain some favor.cdlvi

Commentary

2. Canons 67 and 68 of the 1917 Code are contained the norms of canon 77 of the
new Code. This latter canon 77 retains the substance of the former canons.

The interpretation of privileges as prescribed in canon 77 requires adherence to the

prescripts of canon 36, §1 applicable to every singular administrative act. Excepting
those cases explicitly mentioned in canon 36, §1, all administrative acts are to be
interpreted broadly in case of doubt.

2. A privilege depends upon the will of the grantor, and this will is manifested in
words through which it is expressed. Therefore, it is extremely important that the words
are carefully studied. The general principle in regard to interpretation of a law or an
administrative act is that: when the wording is clear, the tenor of the text is the norm.
This is equally applicable to a privilege. If legal terminology is used, then one should
consult canonical sources where the technical terms are explained, e.g., canons 96-109,
where several terms are defined. The privilege should neither be reduced nor extended to
other cases, persons, things, circumstances, or places: “What has been granted to another
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as a favour should not be used by others as a precedent.”cdlvii Furthermore, the

interpretation should take into account the reason for which the favour is granted.

2. In case of doubt, privileges must be interpreted in accordance with canon 36, §1,
that is, they are subject to strict interpretation which clings to the text but limits its
application as its nature permits. If, for example, there is doubt about the meaning of a
rescript granting a privilege contrary to the law in the interests of private parties (e.g., the
privilege of reserving the Blessed Sacrament in a private home contrary to the norm of
canon 934, so that a family may receive Communion more frequently), the rescript is to
be interpreted strictly.

If a privilege has given rise to some doubt regarding its interpretation, but does not
concern litigation, etc., as per canon 36, §1, it is to be given a broad interpretation, i.e.,
the words of the rescript are understood according to their proper meaning, but given the
maximum of extension or application.

2. Whatever the interpretation given to a privilege, it should always be lenient

enough so that the recipient receives some favour from the generosity of the grantor.
Application of the principle, “It is appropriate that odious things be restricted, and
favours be extended.”cdlviii

Canon 66 of the 1917 Code contained a prescript concerning the interpretation of habitual
faculties which were granted forever or for a limited or for a definite number of cases.
Since such faculties are considered privileges outside the law, they are to be interpreted
and applied according to the rules governing such privileges.cdlix

McCormack identifies two cases which may be subject to broad interpretation of

individual privileges. The first case concerns certain privileges given directly to a juridic
person. The second case concerns privileges given contrary to certain particular laws or
legitimate customs since any return to the common law is to be favoured.cdlx

Canon 78

Stability and Perpetuity of a Privilege

§1. A privilege is presumed to be perpetual unless the contrary is proved.

§2. A personal privilege, namely one which follows the person, is

extinguished with that person’s death.

§3. A real privilege ceases through the complete destruction of the thing or
place; a local privilege, however, revives if the place is restored within fifty
years.cdlxi “§3. A local privilege revives if the place is restored within fifty years.”

Commentary
 134

2. In the 1917 Code, canons 70, 74 and 75 contained the prescripts of the
present canon 78. Canon 70 read: “A privilege must be considered perpetual
unless the contrary is evident.” Canon 74 stated: “A personal privilege follows
the person and ceases with that person.” And canon 75 stipulated: “Real
privileges expire upon the complete destruction of the thing or place; local
privileges, however, revive if the place should be restored within fifty years.”
These principle are almost literally reiterated in canon 78 of the new Code.

2. In the tradition of the Church, privileges have been regarded as perpetual. The
Roman Pontiffs estimated that privileges could be revoked only because of their abuse,
and reserved to themselves this right of revocation by the clause appended to the rescript,
“salva Sedis Apostolicae auctoritate” (saving the authority of the Apostolic See). The
clause was used from the time of Pope Celestine III (1143-1144). By way of exception, a
privilege can be temporary when this is mentioned expressly in the rescript, by reason of
the end or particular circumstances of the concession.

The perpetuity of privileges as stated in canon 78, §1, is a presumption of law (can.
1584), based on the legal principle: “It is fitting that any favour granted by a prince
should remain,”cdlxii and as other presumptions of law, it yields to proof to the contrary.
Obviously the perpetuity must be interpreted according to the nature of the privilege as
personal, real, or local.

2. A privilege is said to be personal when it is directly and exclusively granted to a

physical person. It follows the person everywhere so that it can be used in any place
unless it is modified by a limitation to a particular territory. Moreover, it is not
transferable and it cannot be extended to include others.

A personal privilege is perpetual in the sense that, unless it has been stated otherwise by
the grantor, it ceases with the beneficiary and does not pass to his/her heirs or successors.
In this type of privilege, there is strict connection between the favour that has been
granted and the person for whom it has been granted. In other words, a personal privilege
has its foundation in the person and, therefore, exists only as long as the foundation
exists. Therefore, when the person dies, the privilege ceases.cdlxiii It does not cease if the
person to whom the privilege has been granted becomes insane.

2. Privileges granted to juridic persons are also personal. They are such in that, if
granted to a collegiate juridic person, e.g., a religious community, or even a non-
collegiate juridic person, e.g., a Catholic Hospital, they follow the juridic person. For
example, a religious community enjoying special privileges from the Holy See while in
Europe would enjoy the same privileges when it has moved to the U.S. in the absence of
express notice to the contrary. Likewise, a relocated Catholic hospital would continue to
enjoy the same privileges on its new site, within the same territory at least of the grantor.

2. Privileges of juridic persons cease with their suppression by the competent

authority, or after the juridic person has been out of existence for one hundred years. If at
least one member of a collegiate juridic person survives, and the “community of persons”
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according to its statutes has not ceased to be, the exercise of all rights, and privileges
belongs to the surviving member (cfr. can. 120, §2).

2. Real privileges (included in these are also local privileges), which are granted to
things or places, such as ecclesiastical offices, churches, shrines, etc., cease with the
complete destruction of the thing or place to which they are attached. The destruction of
a thing or place can be effected in many ways, but the rule of this canon is to be applied
only to a lawful destruction or extinction, which may happen, e.g., by the decree of
legitimate authority (a bishop reduces a sacred place to secular use in accordance with
can. 1212); by natural collapse, so that the use of the building is almost impossible.
However, if a place is restored (by rebuilding, etc.) within 50 years of its destruction, the
privilege revives. It suffices that reconstruction has at least begun within that time.cdlxiv If
a thing or a place is destroyed by unjust violence, the annexed privilege does not expire,
although it can be suspended. However, even if the destruction of a thing or a place was
effected by unjust violence, if it is absolute, i.e., without hope of restoration, the privilege
annexed ceases to exist also in that case.cdlxv

Canon 79

Revocation of a Privilege

A privilege ceases through revocation by the competent authority

according to the norm of can. 47, without prejudice to the prescript of can. 81.cdlxvi

Commentary

2. The prescripts of canons 60, 71 and 73 of the 1917 Code are summarily included
in canon 79 of the new Code. This canon should be interpreted in light of canons 47 and
81. Canon 47 states that the revocation of an administrative act by another administrative
act of the competent authority takes effect only from the moment at which the person to
whom it was issued is lawfully notified. In other words, the notification of the revocation
of a privilege should be a formal and official intimation or declaration sent by the
competent authority or on his behalf.

2. Canon 81, which is excepted in canon 79, states that a privilege is not
extinguished on the expiry of the authority of the person who granted it, unless it was
given with the clause “at our pleasure” or another equivalent expression. The cessation
of the authority of the person issuing an administrative act may occur by death,
resignation, transfer, deposition, etc.

According to canon 79, therefore, the competent authority, that is one who granted the
privilege, his superior or successor can, for a just and proportionate cause, revoke a
privilege. The revocation must be express and the beneficiary must be formally notified.
Furthermore, a contrary law does not automatically revoke a privilege unless the law
itself stipulates otherwise (can. 73).
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Canon 80

Legitimate Renunciation of a Privilege

§1. No privilege ceases through renunciation unless the competent

authority has accepted the renunciation.

§2. Any physical person can renounce a privilege granted only in that
person’s favor.

§3. Individual persons cannot renounce a privilege granted to some juridic

person or granted in consideration of the dignity of a place or of a thing, nor is a
juridic person free to renounce a privilege granted to it if the renunciation brings
disadvantage to the Church or to others.cdlxvii

Commentary

2. Canon 72 of the 1917 Code had the same prescripts which are repeated in canon
80 of the new Code.

Renunciation of a privilege, as dealt with in canon 80, is the voluntary giving up of a

privilege by the beneficiary. This is permissible because, as a rule, everyone is at liberty
to relinquish personal rights. However, to be effective, renunciation must be accepted by
the competent authority. For liceity, a just cause is required for the renunciation of a
privilege.

2. The competent superior to accept the renunciation of a privilege is the legislator

or his delegate who granted it, i.e., the grantor, superior, successor, etc. The executor of a
rescript containing a privilege cannot accept its renunciation at the time of execution
unless empowered to do so, nor later, since the executor’s mandate is terminated once the
execution is completed. Thus a privilege granted by the bishop can be accepted when
renounced by the bishop himself or by the Holy See, but not by his Vicars.

A physical person, i.e., a private person, may renounce a privilege granted for exclusive
personal use because such a privilege is supposed to affect the beneficiary exclusively. If
by accident other persons are dependent on the use of a privilege, even a private person
may be obliged in charity at least to postpone the renunciation.

2. Individual persons, such as the members of a religious community, are not free to
renounce a privilege granted to a juridic person, or a real or local privilege. In the case of
a collegiate juridic person, a collegial act is required, for example, the vote of a chapter of
canons to relinquish a privilege; or again, the constitutions of an institute of consecrated
life may determine the procedure to be followed in such cases, say the vote of the
Superior with the Council or chapter. If there is question of a non-collegiate juridic
person, the consent of the Superior or administrator suffices for renunciation of a
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privilege, unless the statutes of the juridic entity determine otherwise.

2. In the case of a local privilege, e.g., one granted to a shrine entrusted to a religious
institute the legitimate Superior can renounce the privilege. If there is question of a
privilege attributed to a dignity or office, e.g., the wearing of a ring, the titular, who is
supreme in his order, such as superior general etc., can renounce the privilege.

However, a juridic person cannot renounce one of its own privileges, if such is damaging
to the Church or other persons. The obligation of non-renunciation may arise from
motives of justice and/or charity. For example, a Carmelite convent may not renounce
the status of an oratory accorded the privilege to their chapel as per canon 1223 (this
canon defines an oratory and its purpose), if thereby, lay persons living in the area would
be deprived of the opportunity of fulfilling their Sunday obligation. The act of
renunciation of a privilege granted to a juridic person must follow the norms stipulated in
canon 119.

Canon 81

Cessation of the Granting Authority

A privilege is not extinguished when the authority of the one who granted
it expires unless it has been given with the clause, at our good pleasure (ad
beneplacitum nostrum), or some other equivalent expression.cdlxviii

Commentary

2. This canon has been already commented upon within the context of canon 79.
Canon 73 of the 1917 Code is the immediate source of this canon and its text has been
retained in its entirety in the new Code.

In conformity with the norm of canon 46, the cessation of the right of the authority who
granted the privilege does not per se cause its loss, because the power which was the
source of the privilege is normally attached to the office, and not linked to the person,
unless the concession had been made with the clause “ad beneplacitum nostrum” or some
other equivalent expression.

The clause “ad beneplacitum nostrum” is a formula of decretal law. When such an
expression (for example, “durante pontificatu meo”) is used, the ecclesiastical authority,
while granting a privilege, a faculty, or a favour, intends not only to reserve the right to
revoke the grant when it is necessary or opportune, but also to limit its duration, by
attaching a time-limit during which the titular will be in office, and the concession thus
made will not cease by his resignation, removal, transfer, death, etc.

The clause “ad beneplacitum nostrum” is very different from the simple formula “ad
beneplacitum,” which is equivalent to “donec revocavero” (“until I revoke”). These last
two expressions require a positive act of revocation, and if such an act is not placed
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effectively, the favour, the faculty, or the privilege thus granted, continue to exist even
after the superior has ceased from office.cdlxix

Chiappetta notes that the expression “ad beneplacitum” can refer to the Roman Pontiff (as
“ad beneplacitum nostrum”) and also to the Holy See (as “ad beneplacitum Sanctae
Sedis). When it refers to the pope, the privilege granted with such a clause ceases to have
force after his death. When it refers to the Holy See, since the Holy See “does not die,”
the expression signifies that the privilege continues to exist “until the Holy See revokes
it.”cdlxx

Canon 82

Legitimate Prescription of a Privilege

A privilege which is not burdensome to others does not cease through non-
use or contrary use. If it is to the disadvantage of others, however, it is lost if
legitimate prescription takes place.cdlxxi

Commentary

2. Canon 76 of the 1917 Code contained the norm we have in canon 82 of the new
Code. The former canon stated that by non-use or contrary use a privilege not onerous to
others did not cease; privileges which created a burden for others or caused damage to
them could cease through legitimate prescription or “tacit renunciation.”

2. The non-use of a privilege is verified in a case of affirmative privileges and takes

place when a person omits to place acts in accordance with the privilege, e.g., celebration
of Mass in a church by a priest who enjoys the privilege of celebrating Mass at home;
privilege granted to a religious community to collect alms, etc.

Contrary use is verified in the case of a negative privilege and takes place when a person
posits acts which, in accordance with the privilege, can be omitted, e.g., recitation of the
Breviary by a priest who by privilege enjoys exemption from that obligation; or, for
example, the payment of cathedraticum by a parish which is exempted from it.cdlxxii

2. Non-burdensome privileges are merely favourable privileges, namely those which

do not create a burden for others or cause damage to them, e.g., the privilege of eating
meat on days of abstinence contrary to canon 1251 in countries where the universal law is
in force. Conversely a burdensome privilege is one which imposes a burden or causes
damage to others, e.g., the privilege of collecting alms within a certain area granted to a
religious community.

Non-burdensome privileges do not cease by non-use (i.e., favourable affirmative

privileges) or by contrary use (i.e., favourable negative privileges), because the recipient
can have good reasons for not enjoying the benefits of the favour, and, moreover, such a
privilege is by its very nature a permanent favour (can.78, §1). Nor is it subject to
 139

prescription (can. 199).cdlxxiii The present canon retains the principle that tacit renunciation
of a non-burdensome privilege does not cause its cessation, because, as a general
principle, no one is obliged to make use of a privilege granted for personal benefit.cdlxxiv

2. Canon 82 prescribes that a burdensome privilege can be lost by non-use or

contrary use if lawful prescription takes place. The law here implies that there is a willful
non-use or contrary use of the privilege. Thus, to effect the cessation of an onerous
privilege, the non-use must occur as follows: the beneficiary, having the occasion to use
the privilege, must knowingly, spontaneously, and voluntarily fail to avail himself/herself
of it. Similarly the contrary use of a burdensome privilege must be deliberate,
spontaneous, and voluntary.cdlxxv

Prescription is “a means of acquiring or losing a subjective right as well as of freeing

oneself from obligations” (can. 197) through the passage of time determined by law. In
the case of non-use or contrary use of a burdensome privilege, a prescription may cancel
that privilege. In other words, a third party is freed from obligations hitherto placed on
him/her by the privilege, e.g., the parish priest does not retain the Christmas collection
which he is entitled to in virtue of a privilege. However, the prescription which cancels a
burdensome privilege must be legitimate with respect to appropriate subject and object
(i.e., the privilege must be such as can be renounced), to the requisite period of time, and
to the other required conditions (see cann. 197-199). But according to can. 199, 2o, rights
which can be acquired only from an apostolic privilege are not subject to
prescription.cdlxxvi

2. As noted above, in canon 76 of the 1917 Code, it was prescribed that burdensome
privileges may cease by “tacit renunciation.” This is not reiterated in the new Code.
According to commentators, “tacit renunciation” was presumed if the non-use of an
affirmative burdensome privilege continued for a notable period of time, e.g., ten years.
Likewise tacit renunciation was presumed if acts of use contrary to a negative
burdensome privilege were continuously performed over a long period of time. If all
these conditions concurred, then in virtue of previous consent given by the legislator in
canon 76 of the 1917 Code, renunciation could be considered as accepted by the
competent superior as soon as it might be presumed to have been made.cdlxxvii Since canon
82 of the new Code does not include “tacit renunciation” as one of the ways in which a
burdensome privilege ceases, it should be considered to have been deliberately left out by
the legislator in order to avoid confusion in defining its exact meaning and limits. Canon
80 is specifically concerned with explicit renunciation of a privilege. It seems, therefore,
the new Code does not acknowledge “tacit renunciation” as a means by which a
burdensome privilege ceases.cdlxxviii However, we should note that canon 1534 of CCEO
explicitly states: “it is lost if [...] tacit renunciation takes place.” This would imply that,
contrary to the norm of the Latin canon on this point, the Eastern canon allows cessation
of a burdensome privilege through tacit renunciation, but this prescript is not applicable
to the Latin provision on this matter.
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Canon 83

Lapse of Time and Completion of Number of Cases

§1. A privilege ceases through the lapse of the time period or through the
completion of the number of cases for which it had been granted, without
prejudice to the prescript of can. 142, §2.

§2. It also ceases if, in the judgment of the competent authority,

circumstances are so changed in the course of time that it becomes harmful or its
use illicit.cdlxxix

Commentary

2. Canon 77 of the 1917 Code is the source of the present canon 83. Canon 78, §1
of the new Code stipulates that a “privilege is presumed to be perpetual unless the
contrary is proved.” Canon 83 introduces some exceptions to the prescripts of this norm.
This canon implies that a privilege may be granted for a definite period of time and for a
certain number of cases. Thus, a privilege ceases “ex se” when the stipulated time expires
or the number of cases for which it was granted is completed. For example, the Holy
Father may concede a faculty through a privilege to last until the time when new norms
concerning the matter of the privilege have been promulgated or to be exercised for
definite number of cases.

Canon 83, §1, leaves intact the prescript of canon 142, §2, which states, “an act of
delegated power which is exercised for the internal forum alone and is placed
inadvertently after the lapse of the time of the grant is valid.” Thus, if a person receives a
privilege which involves exercise of delegated power in the internal forum for certain
number of days, but indavertently places an act after the passage of those days, or beyond
the number of cases for which it was granted, his act would be valid in virtue of canon
142, §2.cdlxxx

As stated in canon 72, a rescript granted by the Apostolic See which has expired can be
extended once by the diocesan bishop for a just cause, but not beyond three months. The
implication of this canon is that in case a privilege is of an apostolic grant it could be
prorogued by the diocesan bishop once according to the norm of law.cdlxxxi

2. The principle of common error is also applicable in similar situations involving

exercise of executive power. That is, in the case of common error, the use of a temporary
privilege is valid, even in the external forum, beyond the time for which it was granted or
after it has been used in the number of cases specified in it (can. 144). Apart from the
case of common error, its use in the external forum is always invalid and illicit.cdlxxxii

2. Canon 83, §2 provides for the cessation of a privilege when there is change in
circumstances to such a degree that, in the judgment of competent authority, the privilege
 141

becomes harmful or its use illicit:

a) A privilege becomes harmful if its use results in public harm, or harm to the
person using the privilege, or in harm to a third party.

b) The use of a privilege becomes illicit if its exercise is contrary to justice or

honesty.

c) It would appear from the tenor of the canon that for the cessation of a privilege
due to changed circumstances which render it harmful, the change in circumstances
should be certain (definite) and permanent. If the change in circumstances is only
temporary, authors think that the use of the privilege is suspended, and the competent
authority may declare reinstatement of the privilege..cdlxxxiii

2. The competent authority mentioned in canon 83 is the one who granted the
privilege, his superior, successor, or delegate. This authority would merely make an
authentic declaration of the cessation of the privilege which has already taken place. For,
although the words of this canon do not explicitly assert it, probably the privilege expires
per se, that is, it is affected by the very nature of the circumstances which render it
harmful or its use illicit.cdlxxxiv The declaration concerns the fact of a privilege being
turned truly harmful or its use illicit. This is required by the external juridic order. It is
not required per se for the internal forum. Chiappetta says that the judgement concerning
this matter can be made by the Ordinary taking into account the prescript of canon 84.
He adds, however, that for an authentic declaration, for a valid eventual judgement, the
intervention of the authority who granted the privilege or an authority hierarchically
superior is necessary.cdlxxxv

Canon 84

Privation of a Privilege for Serious Abuse

One who abuses the power given by a privilege deserves to be deprived of

that privilege. Therefore, when the holder of a privilege has been warned in vain,
an ordinary is to deprive the one who gravely abuses it of a privilege which he
himself has granted. If the privilege was granted by the Apostolic See, however,
an ordinary is bound to notify the Apostolic See.cdlxxxvi
 142

Commentary

2. Canon 78 of the 1917 Code had a similar prescript which is contained in the
present canon 84. In the former, the right of the Ordinary to deprive an abuser of a
privilege which he had granted was not explicitly stated. The canon read: “A person who
abuses the power granted him by privilege merits deprivation of the privilege; and the
Ordinary shall not fail to notify the Holy See if anyone grievously abuses a privilege
which it has conferred on him.” Whereas, the present canon adds the provision: “when
the holder of a privilege has been warned in vain, an ordinary is to deprive the one who
gravely abuses it of a privilege which he himself has granted.”

2. Abuse of a faculty received through a privilege does not induce its “ipso iure” or
automatic cessation. The cessation of the privilege because of abuse in its use requires a
sentence (or a decree), at least declaratory, issued by the competent authority, who in this
case would be the author of the privilege or an hierarchically higher authority. The canon
specifically mentions the Ordinary (understood in the sense of can. 134, §1) as the
authority competent to issue the warning and the eventual decree of privation of the
privilege. The law requires that the Ordinary concerned before issuing the decree
depriving the abuser of the privilege, warns the person about the matter. It appears from
the wording of the canon that even one warning would suffice. If the offender does not
stop abusing the privilege, the Ordinary has the right and duty to issue the decree of
privation (privet).cdlxxxvii

2. Generally speaking, to abuse is to turn something to a purpose other than that for
which it was intended.cdlxxxviii This may occur in several ways: a) through the extension of
its use beyond the limits of the grant; b) by making it an occasion of sin; c) if its use
directly frustrates the end for which it was granted. For example, a religious who has
been granted the privilege of residing outside community life in order to pursue graduate
studies, wastes time on activities unrelated to his/her intended studies.cdlxxxix

The abuse must be serious either by reason of the matter involved, or the length of time
over which the abuse takes place. When the privilege from the Holy See is being abused,
the Ordinary cannot deprive the offender of his/her privilege, but it is his duty to notify
the Holy See of the abuse. It is implied here that the Ordinary is expected to report on the
matter to the Holy See as soon as he is certain of the abuse of the privilege, and it is up to
the Holy See to decide on the matter.

For privation of a privilege, as an expiatory penalty for a crime, see canons 1336, §1,2o
and 1338, §1; for suspension of the right to benefit from a privilege, see canon 1331,
§2,3o.cdxc
2.

CHAPTER V

DISPENSATIONS
 143

2. The institute of dispensation has its remote roots in Roman law which was applied
mainly to three areas: the law, penalties and contracts.cdxci In the early Church laws were
few and, therefore, dispensations from those laws were quite rare. Only when necessity
or great spiritual benefit was forthcoming from dispensations, were relaxations from laws
permitted. In the beginning dispensations were granted as post-factum relaxations of
laws against which certain juridic acts had been placed.cdxcii It was only from the ninth
century onwards that the use of dispensations became more frequent mainly because of
gradual concentration of ecclesial power in the person of the Roman Pontiff. Even
though some Bishops and Synods exercised the faculty of dispensing in a limited number
of cases, the fullness of power to dispense from universal laws rested in the supreme
authority. It was during the XXV Session of the Council of Trent, held on 3-4 December
1563 that the traditional teaching on the motivation for dispensation was declared into
law: “Sometimes it is publicly expedient to relax the obligation of law in order to better
provide for the common good in times of new cases and necessities.”cdxciii

Historically two streams of doctrinal interpretations on the nature of dispensations could

be identified. Yves of Chartres (d. 1115) thought that the bishops should dispense their
people whenever they could secure some spiritual good. He taught that justice must be
tempered with mercy. If fact, as the bishop of Chartres he frequently dispensed his
subjects from laws in order to accommodate to difficult situations. His view was
reflected in a definition of dispensation attributed to Yves of Chartres: “a temporary
relaxation of the law’s rigor on account of a necessity of circumstances or usefulness to
the Church.”cdxciv On the other hand, Gratian argued that the plenitudo potestatis resides
in the Roman Pontiff and others receive the power or jurisdiction through delegation from
him, which included also the power to dispense from ecclesiastical laws. While, for Yves
of Chartres, the bishop’s dispensing power came through episcopal consecration, for
Gratian, the bishop received it through delegation from the pope.cdxcv The latter view
prevailed in canonical circles for centuries. Thus, by the sixteenth century canonists and
theologians were defining dispensation in somewhat the same sense as the 1917 Code
did.

The Eastern Code has only 4 canons on dispensations compared to the 9 in CIC. In many
instances the Eastern Code presupposes the general principles on singular administrative acts
rather than repeat them in each sub-category. The very first canon (1536) is a prime example of
this because several principles which are dispersed in many canons of CIC are placed contained
in it.

Canon 85

Notion of Dispensation

A dispensation, or the relaxation of a merely ecclesiastical law in a

particular case [in casu particulari], can be granted by those who possess
executive power within the limits of their competence, as well as by those who
have the power to dispense explicitly or implicitly either by the law itself or by
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legitimate delegation.cdxcvi Ҥ3. In the case of doubt concerning the sufficiency of the cause,
a dispensation is granted licitly and validly.”

Commentary

2. Canon 85 provides the traditional definition of a dispensation: “the

relaxation of a merely ecclesiastical law in a particular case.” It means that a
dispensation suspends the obligation of a merely ecclesiastical law in a particular
case. All the elements emphasized in this definition are essential to the notion of
dispensation:

a) a relaxation: a law imposes an obligation in conscience; through dispensation

this juridic bond or the obligation is suspended in favour of a determined person, physical
or juridic. In this particular case the law remains deprived of its acting efficacy. The net
effect of a dispensation from this point of view is negative, that is, the obligation of the
law disappears without a new and stable norm of action being substituted in its place.

b) of a merely ecclesiastical law: dispensation is applicable only to “merely

ecclesiastical laws” (cfr. can. 11), that is, laws enacted by purely ecclesiastical authority,
and not to divine laws, natural or positive, which oblige even the unbaptized. Human
power does not have the competence over divine laws, hence not subject to dispensation.

c) in a particular case: the obligation is suspended only for certain persons,

physical or juridic, with regard to certain things (matter) and in concrete circumstances.
The obligation remains intact for all others who are not dispensed. The dispensation may
concern a unique act of one or several persons, or their repeated acts; it may concern even
an entire community for a certain period of time, for example, dispensation from canons
1250-1251 (fast and/or abstinence) for one day, for an entire lent, given to one person or
several persons, families, a religious community, etc.

2. Canon 80 of the 1917 Code spoke of “casus specialis” (“special case”) which has
been changed to “casus particularis” (“particular case”) in the new canon 85. The latter
seems more appropriate since it expresses a concrete case which is the object of
dispensation, while a “special” case can also be “general” and, as such, an object of
law.cdxcvii “Particular case” is inclusive of the special circumstances in regard to the
passive subject (recipient), cause, or time.cdxcviii

2. A dispensation requires intervention of a positive act of a competent authority. In

the Code there are instances where the law itself provides for exemptions which do not
involve intervention of any authority. These are simple exemptions and not
dispensations. For example, Canon 919,§3 establishes that “the elderly, the infirm, and
those who care for them” are not bound by the obligation of the Eucharistic fast, and “can
receive the Most Holy Eucharist even if they have eaten something within the preceding
hour.”

2. A dispensation may be distinguished from:

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a) a simple favour (gratia), which is a transitory concession outside the law;

b) a privilege, which is a favour either contrary to or outside the law per se

enjoying permanence; in a privilege a new norm of action is provided while in a
dispensation the law is rendered inoperative by the suspension of its obligation in a
particular case;

c) epikeia, which is a judgment made by a private person concerning the

suspension of a human law in a particular case; in the application of epikeia the
obligation of the law does not cease by the external intervention of a public authority, but
the individual excuses self because of the difficulties encountered in fulfilling the
obligation of the law;

d) permission (licentia), which consists of a faculty given according to the law

and in some instances it can even be presumed (e.g., cann. 283,§1; 886,§2; 911,§2;
969,§1). On the other hand, a dispensation is “contrary to the law” and requires the
intervention of a competent authority and it is never to be presumed;

e) abrogation, which causes the cessation of a law or its revocation and not
merely the suspension of its juridic bond in a particular case as it happens in case of
dispensation;

f) toleration, which is an attitude of prudence on a superior’s part who, while

leaving the obligation of the law intact, permits its transgression in order to avoid greater
harm which could be particularly detrimental to the Church;

g) remission, which is a total or partial pardoning of a canonical penalty due to

violation of a law (cfr. cann. 1354-1361).cdxcix

2. Furthermore, dispensations are distinguished as follows:

a) with respect to their cause, they are due (necessary) when they are based on a
weighty motive, e.g., of great value to or serious necessity of the Church, and as such
they cannot be refused; permissive (voluntary, free) when they are based simply on a just
cause;

b) with respect to the mode of issuance, they are explicit when issued in clear
terms or acts; implicit when manifestly contained in another act, e.g., in the act by which
a superior knowingly and willingly appoints a person to an office who he knows lacks the
qualification required by law;

c) with respect to their scope, they are singular when they are granted to a
particular person for one act only, e.g., a dispensation from the law of abstinence for a
determined day; they are multiple when they are granted for several persons, e.g., for the
benefit of the members of a religious house; continuous (with successive application)
when they relax for several instances the obligation of a law that per se is repeatedly
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renewed, e.g., a dispensation from the obligation of reciting the breviary for a month;

d) with respect to efficacy, they are total, when they relax the obligation of a law
fully; partial, when they relax the obligation of the law in part only or as regards certain
effects, e.g., dispensation from the vow of chastity only to contract marriage.d

2. Canon 85 introduces a significant change in regard to the author of dispensation

which seems to be contrary to canonical tradition. In the past, dispensation had been
regarded as a legislative act. Thus canon 80 of the 1917 Code designated the following
as the author of a dispensation: legislator, his successor, his superior and one who has
been duly delegated by them to dispense. As the Code Commission admitted, this was
mainly due to insufficient distinction between the three functions of the ecclesiastical
power of governance.di Whereas the new canon states that a dispensation is a particular
administrative act of a competent executive authority.

According to this change, the power of dispensing is not restricted only to those who
exercise legislative power; it can be exercised by those who have executive authority as
well. Of course, this change is not without its difficulties in light of the complex nature
of the institute of dispensations. Yet, as Chiappetta rightly observes, this change is
appropriate and justified because a dispensation concerns the execution or application of
law as such by suspending the juridic bond in a particular case.dii It does not modify the
law in any way. It is a specific act of an administrative function and not of legislative
function.

2. According to the new concept of dispensation, canon 85 determines that its

concession can be effected:

a) within the limits of their competence, by those who enjoy executive power e.g.,
diocesan bishop and those who are equivalent to him in law (cann. 368, 381,§2), and
Ordinaries (can. 134,§1).

b) as well as those to whom the power of dispensing has been given explicitly or
implicitly either by the law itself or by lawful delegation. There are several places in the
Code where the power to dispense is explicitly or implicitly granted (cfr. cann. 527,§2;
595,§2; 1047,§4; 1078, etc.). Canon 137 provides rules for the delegation of executive
power. Therefore, any delegation for dispensation is governed by the prescripts of that
canon. Similarly, canon 136 determines the subject of executive power, and therefore, it
must be exercised only over those specified in it.
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Canon 86

Laws not Subject to Dispensation

Laws are not subject to dispensation to the extent that they define those things
which are essentially constitutive of juridic institutes or acts.diii

Commentary

2. The present canon 86 does not have an equivalent in the 1917 Code even though
the principle of constitutive legislation and its non-dispensability was clearly understood
in the past. The new canon has been derived from the motu proprio De Episcoporum
muneribus, n. IV: “According to canon 80 a dispensation means a relaxation of a law in a
special case. But the faculty to dispense is exercised only as to law which command or
forbid, not as to constitutive laws.”div

2. Canon 86 deals with the object of dispensations. According to the norm of this
canon, there cannot be a dispensation from a constitutive law, that is, a law which
establishes elements without which there cannot be: a) a juridic institute, that is, a certain
form (figure) or an institution established by either divine or ecclesiastical law. For
example, the requirement of residence as an element of domicile (can. 102), ecclesiastical
office, clerical state, parish, essential rights and obligations of marriage, three vows of
religious profession, etc.; b) a juridic act, that is, an act to which a law attaches juridic
effects (cfr. cann. 124-128), e.g., marriage consent, appointment to an office, acceptance
of a contract, the requirement of exclusion of doubt in arriving at a judicial decision in a
marriage nullity case (can. 1608,§1).dv

2. The essential elements of both juridic institute and juridic act are not subject to
dispensation because in the absence of any one of the essential components the institute
or the act would be juridically inexistent. Therefore, there cannot be a dispensation from
an essential element of marriage, nor can there be a dispensation from any one of the
religious vows in making religious profession. Similarly, there cannot be a dispensation
from the requirement of consent of specified persons in order to place certain juridic acts,
e.g., alienation of ecclesiastical property, determined in law.

The Eastern Code includes in canon 1537 also procedural and penal laws under the
category of non-dispensable laws for their gravity and importance. For these laws
involve and affect rights and, therefore, the Church cannot afford to deny or restrict
exercise of human and ecclesial rights which procedural and penal laws are designed to
protect.

It appears that the supreme legislator can dispense from any laws he has enacted or
sanctioned. However, dispensation from a constitutive law would amount rather to a
derogation from or even abrogation of the law itself in question, and consequently, the
elimination of the institute or of the act. Therefore, the general principle of canon 86 is
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applicable also to the supreme legislator.

2. Implicit in canon 85 is the non-dispensability of divine laws, natural or positive.

These laws are totally removed from any human power. Nevertheless, in the Church
there are particular dispensations over matters which are directly related to divine law,
e.g., vows, oath, ratum non-consummatum marriage, privilege of the faith, etc. But these
cases concern only some limited matter and the Church claims power over it as given by
Christ.dvi

Canon 87

Dispensing Power of the Diocesan Bishop

§1. A diocesan bishop, whenever he judges that it contributes to their

spiritual good, is able to dispense the faithful from universal and particular
disciplinary laws issued for his territory or his subjects by the supreme authority
of the Church. He is not able to dispense, however, from procedural or penal laws
nor from those whose dispensation is specially reserved to the Apostolic See or
some other authority.

§2. If recourse to the Holy See is difficult and, at the same time, there is
danger of grave harm in delay, any ordinary is able to dispense from these laws
even if dispensation is reserved to the Holy See, provided that it concerns a
dispensation which the Holy See is accustomed to grant under the same
circumstances, without prejudice to the prescript of can. 291.dvii

Commentary

2. According to canon 81 of the 1917 Code, “Ordinaries” (these included

also the diocesan bishop) subordinate to the Roman Pontiff could not grant
dispensations from general laws of the Church even in a particular case unless this
power was given to them either explicitly or implicitly, or recourse to the Holy
See was difficult while there was grave harm in delay. This prescript in effect
sanctioned the canonical tradition which upheld the doctrine favouring the
fullness of ecclesiastical power in the person of the Roman Pontiff. The general
rule was that the power to dispense from all dispensable ecclesiastical laws was
reserved to the Roman Pontiff while his subordinates, including diocesan bishops,
could have it only as an exception.

2. The theory underlying this practice itself was radically modified by the Second
Vatican Council which, in its dogmatic constitution Lumen gentium 27 and in the decree
Christus Dominus 8, proclaimed three important ecclesiological principles concerning the
functions and powers of diocesan bishops: first, bishops govern particular churches
entrusted to their pastoral care as vicars and legates of Christ and not as vicars of the
Roman Pontiff (LG 27, 1-2); second, bishops exercise their power in Christ's name and,
therefore, it is proper, ordinary and immediate even though its exercise is subject to the
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supreme authority of the Church, and in view of the good of the Church and of the
faithful it can be circumscribed by certain limits (LG 27, CD 8, a). In virtue of his office,
the Roman Pontiff has the power to reserve certain matters to himself or to some other
authority (CD 8, a); third, each diocesan bishop has the power to dispense from the
general laws of the Church in particular cases those faithful over whom they normally
exercise authority, always for their spiritual good. This may not cover a matter which has
been specially reserved by the supreme authority of the Church (CD 8, b).

2. These fundamental ecclesiological principles were put into effect by Paul VI on

15 June 1966 through his motu proprio De Episcoporum muneribus in which he granted
to diocesan bishops the faculty to dispense from universal laws of the Church in
particular cases (excluding “constitutive”and “procedural” laws) for the good of the
faithful, and provided a list of twenty dispensations reserved to the Apostolic See. This
motu proprio of course was meant for bishops of the Latin Church; therefore it was
followed by another motu proprio Episcopalis potestatis on 2 May 1967 granting the
same powers to bishops of Eastern Churches.dviii This way the canonical tradition
sanctioned in canon 81 of the 1917 Code was overturned by making what was an
exception (the dispensing power of the diocesan bishop) a norm and reservations on the
part of the Roman Pontiff exceptions. These concessions were to be in force only until
the “promulgation of the new Code.”dix

The praxis and experience which followed these legislative documents introduced
appropriate changes in the law on dispensations and these have been articulated in the
new Code. The new norms clearly distinguish the “ordinary” powers of the diocesan
bishop (can. 87,§1) from the “exceptional” powers of other “Ordinaries” (can. 87,§2).

2. The important textual changes that have been introduced into canon 87,§1 are: a)
it has “the diocesan bishop” instead of “Ordinaries subject to the Roman Pontiff”; b) it
mentions “universal and particular laws issued for his territory or his subjects by the
supreme authority of the Church” instead of “general laws”; c) it adds further
specification to the dispensing power of a diocesan bishop by stating that he cannot
dispense from “procedural laws or penal laws” and from those dispensations which are
“specially reserved to the Apostolic See or to some other authority.”

According to canon 87,§1, the following principles cover the dispensing power of the
diocesan bishop:

a) The diocesan bishop has the power of dispensing from ecclesiastical laws in
virtue of his office. Since canon 87,§1 refers only to “diocesan bishop,” it must be
understood that the power mentioned therein does not pertain to either “local” or
“personal” Ordinaries (cfr. can. 134,§3). In law the “diocesan bishop” includes:
residential bishops in charge of a diocese (can. 376); Vicar and Prefect Apostolic (can.
371,§1); Apostolic Administrator (can. 371,§2); Diocesan Administrator (can. 427,§1);
territorial Abbots and Prelates (can. 370); Personal Prelates (can. 372,§2).

b) This power is ordinary, but to be exercised only in particular concrete cases

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involving physical or juridic persons (can. 85) as often as it contributes to “the spiritual
welfare of the faithful” (CD 8, b; DEM n. VIII) according to the judgment of the same
bishop.

c) It is exercised over disciplinary laws, universal as well as particular laws

enacted by the supreme authority of the Church for his territory or for his subjects. This
power can be delegated according to the norms of canon 137.

2. Excluded from this dispensing power of the diocesan bishop are three classes of
laws: a) procedural laws (since these concern administration of justice and defense of
rights); b) penal laws (since these deal with the protection of rights of great importance to
the Church or to the faithful, cfr. cann. 1317 and 1318); c) laws whose dispensation is
reserved to the Holy See or to some other authority because of their particular importance
to the life of the Church, e.g., the law on celibacy (can. 291); age beyond one year for
ordination (can. 1031, §4) etc. In accordance with principle 4 of the fundamental
principles guiding the revision of the Code, several cases are clearly and specifically
reserved to the Apostolic See in the new Code, e.g., specific irregularities and
impediments to sacred ordination (can. 1047), matrimonial impediments (can. 1078,§2),
etc.dx

2. It seems canon 87,§1 does not speak of invalidating and disqualifying laws. That
means these laws, unless they govern constitutive, procedural, penal or reserved matters,
are per se not excluded from the dispensing power of the diocesan bishop.dxi

Canon 87,§1 speaks of only “disciplinary laws” of the Church. It is understood by

“disciplinary laws,” those ecclesiastical laws which “command or forbid,” (DEM n. IV),
and are consequently concerned with purely disciplinary matters of the Church and not
doctrinal (divine) or constitutive laws. Thus disciplinary laws are those: a) which
command (leges precipientes), and thus create an obligation to do something, e.g., canon
1247 imposing an obligation of assisting at Mass on Sundays and holydays; b) which
forbid (leges prohibentes), and therefore, contain a prohibition and create an obligation to
omit some action, e.g., canon 1251 imposing an obligation to abstain from meat on
Fridays.

2. Canon 87,§1 mentions “the faithful” (fideles) as the subject of dispensation. In

the Code this term has a very wide meaning. However, this was more specific in
Christus Dominus 8 b, where it said: “those faithful over whom they normally exercise
authority” and in De Episcoporum muneribus n. VII where it stated: “are all those who
are subject to the bishop by reason of domicile or on some other ground.” Since, in the
case of dispensations, there is question of the exercise of executive power, it should be
exercised in accordance with the prescript of canon 136. This canon spells out the
principle that persons may exercise their executive power over their subjects (cfr. cann.
100 and 102) even when they are outside his territory, over travelers actually present in
his territory. The term “faithful” of canon 87,§1 is to be understood in light of this
principle.
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2. Paragraph 2 of canon 87 extends, in special circumstances, to all Ordinaries the

dispensing powers granted to the diocesan bishop by canon 87,§1, and allows them to
dispense even from reserved cases with the exception of the law on clerical celibacy (can.
291).dxii

The “Ordinaries” mentioned in canon 87,§2 include, besides the Roman Pontiff, diocesan
bishops and their equivalents in law (cfr. cann. 376, 370, 371, 427,§1), Vicars General
and Vicars Episcopal (can. 479), all personal Ordinaries (can. 372,§2), and religious
Ordinaries (can. 134,§1). These can dispense from all disciplinary laws (excluding
procedural and penal laws), both universal laws and those particular laws enacted by the
supreme authority of the Church under three conditions:

a) if recourse to the Holy See is difficult: It should be noted that the canon does
not say “impossible” but “difficult.” The ordinary means of communication for such
recourse is by mail. No obligation exists to use extraordinary measures, such as
telephone, telegraph, fax, personal trip to Rome, etc.dxiii All such means are rather
disapproved by the Holy See because they are not sufficiently secret nor can they be
secure from eventual fraud.dxiv

b) at the same time, there is danger of grave harm in delay: The danger may be
spiritual or material (economic), public or private, moral or physical, etc; but the danger
of grave harm does not necessarily have to be certain. It suffices that in the judgment of
the Ordinary, it be probable, i.e., prudently conjectured, evaluated or dreaded.dxv

c) a dispensation which the Holy See is accustomed to grant under the same
circumstances: In the new Code practically all cases reserved to the Holy See are
specified and similarly provisions are made even for their dispensation in case of
necessity. Apart from these situations, which dispensations are usually granted by the
Holy See can be known from the law and practice of the Roman Curia. Some
dispensations not usually granted by the Holy See are: sacred orders in the case of
bishops; consanguinity in the direct line or in the second degree of the collateral line; and
crime when conjugicide is notorious (can. 1090).

2. The law on celibacy (can. 277,§1) which cannot be dispensed from by anyone
below the Roman Pontiff even in extraordinary circumstances (cfr. can. 1079,§1) had an
exception up until the promulgation of the new Code. That is, faculty was granted to
local Ordinaries in mission countries to dispense, “for a just and reasonable cause, having
taken into consideration the gravity of the impediment,” from matrimonial impediment
arising from the Order of Diaconate.dxvi

2. Thus, when the three conditions mentioned above are simultaneously verified, any
Ordinary not only can grant dispensation from all disciplinary laws mentioned in canon
87,§1, but also can, according to canon 137, delegate the power of doing so. Moreover,
according to canon 138, this power is to be interpreted broadly. However, in ordinary
circumstances mentioned in canon 87,§1, it is necessary to obtain legitimate delegation
from the Holy See or from the diocesan bishops (cann. 85 and 134,§3). In case of
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doubtful laws, the norm of canon 14 must be applied.dxvii

Canon 88

Dispensing Power of Local Ordinaries

A local ordinary is able to dispense from diocesan laws and, whenever he

judges that it contributes to the good of the faithful, from laws issued by a plenary
or provincial council or by the conference of bishops.dxviii

Commentary

2. Canon 82 of the 1917 Code had stated that bishops and other local Ordinaries
could dispense from diocesan laws and from laws of provincial and plenary councils; but
they could not dispense from particular laws enacted by the Roman Pontiff for a
particular territory or diocese, except in cases for which they had been either explicitly or
implicitly given such power or recourse to the Holy See was difficult. But canon 88 of
the new Code radically modifies this restrictive norm. It grants power to all “local
Ordinaries” of dispensing from diocesan laws (here no distinction is made between
diocesan laws made by the diocesan bishop or by the supreme authority of the Church for
the diocese), and from laws enacted by a plenary or provincial council, or by the
conference of bishops whenever the spiritual good of the faithful requires it.

2. By using the term “local Ordinary,” the canon intends to grant this power not just
to diocesan bishops, but also to all those who are covered under that term, namely
diocesan bishops, their equivalents in law (cfr. can. 134,§1), Vicars General and
Episcopal. According to canon 134,§2, religious Ordinaries (Major Superiors of clerical
religious institutes of pontifical right and clerical societies of apostolic life of pontifical
right) are excluded from the provision of canon 88. Except in cases covered by canon
87,§2, these Ordinaries will have to receive this power from competent authorities.

2. Four categories of particular laws from which “local Ordinaries” can dispense are
included in canon 88: a) diocesan laws, that is, laws enacted for the diocese either by the
diocesan bishop or by his superior, and laws similarly enacted for communities
equivalent in law to a diocese; b) laws passed by a provincial council (cann. 440, 446); c)
laws passed by a plenary council (cann. 439, 441, 443-446); and d) laws passed by the
conference of bishops (cann. 447-459). This list should also include particular laws
enacted by the supreme authority for particular countries or regions.

2. Canon 479,§1 declares that the Vicar General has “the power to place all
administrative acts except those, however, which the bishop has reserved to himself or
which require a special mandate of the bishop by law.” Paragraph 2 of the same canon
extends this concession to an Episcopal Vicar. In essence, this canon implies that the
diocesan bishop is entitled to reserve to himself certain dispensations (which are
administrative acts described in cann. 35 and 59),dxix and this could include dispensation
from particular laws whether enacted by himself or by some other competent authority
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for his faithful. In such a situation, dispensation granted by the Vicar General or
Episcopal Vicar contrary to those reservations would be invalid.

2. Canon 88 does not explicitly mention the requirement of a motive for a local
Ordinary to dispense from “diocesan laws.” But, even in this case, the prescript of canon
90, which expresses a general principle requiring a “just and reasonable cause” for any
dispensation, which in a concrete case is the “spiritual good” of the faithful (cfr. can. 87,
§1; DEM n. VIII), should be kept in mind. On the other hand, the “good of the faithful”
has been explicitly mentioned in the canon as a prerequisite for a local Ordinary to
dispense from supra-diocesan laws mentioned therein. The reason for attaching such an
explicit requirement in regard to dispensations from supra-diocesan laws by local
Ordinaries seems to be the fact that the authority of these organisms, conferred by the
general law or by the supreme authority of the Church, transcends the individual
authority of the local Ordinary.dxx

This power of dispensing from supra-diocesan laws granted to local Ordinaries by law
itself can be delegated (cfr. can. 137) because the ordinary administration of the diocese
or its equivalent requires that this means of pastoral ministry not remain in the hands of
the bishop alone.dxxi

Canon 89

Dispensing Power of Clerics

A pastor and other presbyters or deacons are not able to dispense from
universal and particular law unless this power has been expressly granted to
them.dxxii

Commentary

2. Canon 83 of the 1917 Code had a much more limited prescript on priests’ (or
deacons’) faculty to dispense from ecclesiastical laws. It stated that parish priests could
not dispense either from general law or from a particular law unless they were expressly
given the faculty to do so. The revised canon 89 reiterates this norm, but it includes
“other priests and deacons.” Basically, this canon implies that neither simple presbyters,
nor deacons, and not even parish priests per se have the faculty to dispense from any
ecclesiastical laws because they do not have the executive power required by canon
85.dxxiii Nevertheless, they can exercise this faculty only if it has been given to them
expressly by common law or by special delegation.

2. The term “parish priest” mentioned in canon 89 includes several persons

equivalent to a “parish priest” who is, according to canon 519, the proper pastor of a
community entrusted to him by the bishop. These persons are: “in solidum” parish priest
(cann. 517, 543,§1); a religious pastor (can. 520,§1); parish administrator (cann. 539,
540,§1); military chaplain (cann. 564-572), etc.
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The “other presbyters” mentioned in canon 89 are: confessors, deans, rectors of churches,
parochial vicars, religious superiors (not Ordinaries), etc. These may be given special
faculties to dispense from universal and/or particular laws. “Deacons” include both
permanent and transitory deacons who will be promoted to the priesthood.dxxiv

2. Canon 89 states that all those mentioned may be given the power to dispense from
universal or particular law. In brief, the power to dispense granted to parish priests, other
presbyters and deacons by general law itself extends to the following cases:

a) in danger of death, the parish priest, a delegated priest or a deacon can dispense
from public or occult matrimonial impediments (can. 1079,§2);

b) in danger of death, the confessor can dispense from occult matrimonial

impediments in the internal forum (sacramental or extra-sacramental) (can. 1079,§3);

c) as often as a matrimonial impediment is detected when everything is prepared

for the wedding, which cannot be delayed until dispensation is obtained from competent
authority, the parish priest, delegated priest or deacon, or confessor can dispense from
occult matrimonial impediments except those arising from sacred orders or public vow of
chastity in an institute of consecrated life of pontifical right (can. 1080,§1). This faculty
to dispense holds good also in case of convalidating a marriage (can. 1080,§2).

d) the parish priest in respect to all his subjects and also travelers; the superior of
a religious institute or of a society of apostolic life, if these are clerical and of pontifical
right, on behalf of their members, novices and those who reside day and night in a house
of religious institute or society; those delegated by the Holy See or by the local Ordinary,
all these can dispense from private vows as well as from oaths, as long as the
dispensation concerned does not harm others (cann. 1196, 1203).

e) the parish priest, in individual cases, for a just reason, and in accord with the
prescripts of the diocesan bishop, can dispense from the obligation of observing Sunday
or holyday, or a day of penance; the superior of a clerical religious institute or society of
apostolic life of pontifical right enjoys the same faculty in respect to his subjects (can.
1245).
According to canon 89, any of those mentioned therein can be delegated or subdelegated
to dispense in accordance with the norms of canon 137.

Canon 89 requires that the granting of the power to dispense be express. Express
concession of a faculty may be done explicitly or implicitly, for example, when one is
appointed to an office (parish priest or religious superior) to which the dispensing power
is attached.
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XCanon 90

Just and Reasonable Cause

§1. One is not to be dispensed from an ecclesiastical law without a just

and reasonable cause, after taking into account the circumstances of the case and
the gravity of the law from which dispensation is given; otherwise the
dispensation is illicit and, unless it is given by the legislator himself or his
superior, also invalid.

§2. In case of doubt concerning the sufficiency of the cause, a dispensation

is granted validly and licitly.dxxv

Commentary

2. The very nature of a dispensation as an act “contrary” to the law as well as its
purpose requires a “just and reasonable cause” for its issuance. Canon 84 of the 1917
Code dealt with this matter. In paragraph 1 of this canon it was prescribed that “no
dispensation from an ecclesiastical law can be granted without a just and reasonable
cause, and due attention shall be paid to the gravity of the law from which dispensation is
given; otherwise, a dispensation granted by a subordinate is illicit and invalid.” The
requirement of a “just and reasonable cause” was reiterated in DEM, n. VIII, and canon
90 of the new Code repeats substantially the existing legislation with the addition of two
minor changes for further clarification of the previous text. It adds “after taking into
account the circumstances of the case” and “unless it is given by the legislator himself or
his superior.”

2. Laws themselves must be founded on a reasonable and just cause. Their

relaxation then should be allowed only for proportionate causes.dxxvi Otherwise, as Pope
Benedict XIV said, “non dispensationes sed dissipationes essent.” Canon 90,§1
articulates this concern. It clearly states that a “just and reasonable cause” is always
necessary for liceity of a dispensation from any ecclesiastical law no matter who its
author is. This includes even the supreme legislator. The law is enacted principally for
the common good and it obliges always even if it is a question of one’s own laws.
Therefore, not even the supreme legislator can licitly dispense from laws enacted by him
without a just and reasonable cause.

2. A just and reasonable cause is required for the validity of the dispensation from
the law of a superior, e.g., a bishop with regard to laws of the supreme authority of the
Church, a Vicar General with regard to diocesan laws. The superior in effect is
considered not to have given the power of dispensing except under the condition that the
subordinate would use the power reasonably and not without a just cause. The
subordinate who would dispense without a just motive would act beyond the limits of the
mandate and would act without power, and consequently, invalidly.dxxvii

A superior who would dispense without a just and reasonable cause from his own laws or
 156

those of his subordinate, e.g., the Roman Pontiff from general laws of the Church or from
diocesan laws, or from laws of his predecessor, e.g., a bishop dispensing from laws
enacted for the diocese by bishops preceding him, would do so illicitly but validly.

On the other hand it is important that the motivating cause presented in the request be
objectively true, free from every form of subreption or obreption as stipulated in canon
63 on rescripts.

2. In the Code different terms or expressions are used which are equivalent in
implication to ``just and reasonable cause'' mentioned in canon 90,§1. Examples of these
are:

a) “just cause” (iusta causa), canon 527,§2, dispensation from the method of
installing a new parish priest; canon. 1142, dissolution of a ratum non-consummatum;
canons 1196 and 1203, dispensation from private vows and oaths; canon 1245,
dispensation from the obligation of feast days and days of penance.

b) “serious cause” (gravis causa), canon 1114,§2, dispensation from

interpellations in a Pauline privilege case.

c) “serious difficulty” (gravis difficultas), canon 1127,§2, dispensation from

canonical form in a mixed marriage.dxxviii

2. The cause for dispensing, besides being just and reasonable, must be
proportionate to the importance of the law from which dispensation is given. The
importance of any law is measured with respect to the common good which it is intended
to promote. The relative importance of laws can be gathered from a proper understanding
of different kinds of laws, for example, it is more serious to dispense from the law on the
form of marriage (can. 1127,§2) than from the law on fast and abstinence (can. 1245).

2. Causes for dispensation are either intrinsic or extrinsic. Intrinsic causes concern
difficulty in the observance of a law, e.g., physical illness in regard to the law on fast and
abstinence; visual weakness in relation to recitation of the breviary; rough terrain to go
for Mass on Sundays, etc. Extrinsic causes arise from the very person to be dispensed,
e.g., one’s status, dignity or special merit or special benefit, or from the person granting
the dispensation, e.g., to show kindness and liberality, or from common good, e.g.,
reconciliation and restoration of peace and unity, help for pious causes, etc.dxxix

The law requires a just and reasonable cause that is sufficient in a concrete case. It does
not call for the presence of a cause that can render its observance particularly oppressive
or absolutely impossible, because in such a situation the juridic bond of the law ceases by
itself, and one can use the principle of epikeia without having to have recourse to
dispensation.dxxx

2. Paragraph 2 of canon 90 states that a dispensation is both valid and licit in case of
doubt concerning the sufficiency of the cause. In practice, one may grant the
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dispensation after a prudent judgment has been made with regard to the presence of a just
and reasonable cause in the request. Even if there is some doubt about some issue and
the dispensation is nevertheless granted, the law declares that such an act is valid and
lawful. Thus Cappello points out that by this provision the legislator intends to preclude
any anxiety or scruples concerning the concession of dispensation in a situation of doubt
in regard to the existencedxxxi and sufficiency of a just and reasonable cause.dxxxii

In doubt, therefore, the dispensation is valid even if it should become clear later that the
cause was not just. This conclusion should be drawn from the goodwill of the legislator
who has stated this lest the acts dispensation be subject to danger of invalidity.

When the Holy See grants a dispensation without expressing the requirement of a cause,
the executor should not be concerned about it. It suffices that other matters presented in
the letters are found to be true.

Whether the use of a dispensation granted validly but illicitly by a superior, without any
reason, is licit is disputed by authors. From a practical point of view, it should be
considered as licit. A fortiori, this is also applicable to a dispensation obtained with a
doubtful cause.dxxxiii
Whenever a person manifests reasons to the superior and requests a dispensation in good
conscience, he/she should be at ease after obtaining the dispensation even if the cause
might have been objectively insufficient. The use of such a dispensation is definitely
licit.

2. What if the doubt concerning the sufficiency of reason is subsequently discovered

to be unfounded? A distinction should be made in this situation between a dispensation
granted for one act only, e.g., a dispensation from one marriage impediment, and one
which has successive stages, e.g., dispensation from reciting the breviary for one month.
The first is valid and remains such. But the second remains valid only until the doubt
about the sufficiency of the cause has ceased; from that moment on, the dispensation is
not valid because it lacks the requirement prescribed by canon 90,§2.dxxxiv

When a dispensation is granted to a diocese, a monastery, a parish, a religious house, etc.,

all persons in them are dispensed even though the reason for it might not have been
present in the situation of all of them or not all of them were interested in obtaining it.dxxxv
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Canon 91

Scope of Dispensing Power

Even when outside his territory, one who possesses the power to dispense
is able to exercise it with respect to his subjects even though they are absent from
the territory, and, unless the contrary is expressly established, also with respect to
travelers actually present in the territory, as well as with respect to himself.dxxxvi

Commentary

2. Canon 91 is new.dxxxvii However, commentators on the 1917 Code had discussed

the question of passive subjects of dispensation on the basis of principles contained in
parallel canons, e.g, canons 94, 201, etc.dxxxviii In essence, canon 91 applies to dispensing
power the norms established in canon 136. Following are these norms:

a) A person can exercise validly his faculty or power of dispensing over his
subjects even though he himself is outside the territory and even when they are outside
the territory of his competence. The juridic concept of the “subject” is drawn from canon
107.

b) With due regard for contrary provisions, the same faculty can be exercised also
over travelers (peregrini) who are actually present in his territory (cfr. cann. 12 and 13).

c) A person with the faculty of dispensing (unlike judicial power) can exercise it
on one’s own behalf. However, since the faculty to hear confessions is limited to the
sacramental forum, one having the faculty may not use it on their own behalf.dxxxix
Moreover, from a strictly juridic viewpoint an ecclesiastical legislator is not bound by his
own laws. Therefore, technically speaking there is no need for him to dispense himself.
But he is definitely bound to observe his own laws because of the common good, and for
reason of good example to his subjects and to avoid scandal. The provision of self-
dispensation is applicable when a person with executive power to dispense is bound by
the laws from which he is able to dispense.dxl

Since a transient (vagus) is considered a subject of the parish priest and of the local
Ordinary of the place where he/she happens to be at the time of dispensing (cfr. can.
107,§2), the parish priest and the local Ordinary can dispense him/her within the limits of
their competence.

2. The Major Superiors of clerical religious institutes and societies or apostolic life
of pontifical right are Ordinaries, but not local Ordinaries because they do not have their
own territory (can. 134,§2). Therefore, their faculty to dispense can be exercised only in
relation to their subjects (members and novices) and those who live day and night in a
house of the institute or society (cfr. cann. 1196, 2o and 1245). This power is personal
and, therefore, can be exercised wherever these subjects are found.dxli
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Canon 92

Interpretation of Dispensation

A dispensation is subject to a strict interpretation according to the norm of

can. 36, §1, as is the very power to dispense granted for a particular case.dxlii

Commentary

2. This canon expresses a very important principle which touches the very nature of
a dispensation. A dispensation is an act odious to the law in as much as it wounds the
common norm in favour of an individual. Therefore, it must be strictly interpreted.
According to canon 36,§1, a dispensation is subject to strict interpretation:

a) if it is connected with the eventual law suit or controversy;

b) if it injures the acquired rights of others;
c) if it is given “for the benefit of private individuals” contrary to the law.

According to canon 92, therefore, a dispensation granted for the good of a community is
to be interpreted broadly.dxliii

A strict interpretation forbids extension of a dispensation to similar cases in virtue of the

presence of identical or even weightier reasons. It gives to the terms or words of its text a
minimum of extension while still respecting their meaning and never attributing to them a
meaning contrary to the intention of the authority concerned. However, a dispensation is
not to be restricted to such an extent that for all practical purposes it appears useless.dxliv

2. The power of granting dispensation for a specific case is also subject to strict
interpretation. The power of dispensing is given for a specific case if it is individually
restricted either by reason of the object which is dispensed from, e.g., a marriage
impediment, or by reason of the person (one or several), e.g., a specific family which is
dispensed. On the other hand, the ordinary and habitual power of dispensing, or even the
power generally delegated for a certain number of cases (ad universitatem casuum) is
subject to broad interpretation (cfr. can. 138) because such power is regarded as a
favourable grant, and favours are to be interpreted broadly.dxlv Therefore, according to
canon 92, the faculty of dispensing granted for a particular case is subject to strict
interpretation. For example, if a priest is granted the faculty to dispense a particular
person from a matrimonial impediment, he cannot use that faculty to dispense another
person with a similar impediment who may happen to wed the same day.
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Canon 93

Cessation of Dispensation

A dispensation which has successive application ceases in the same way as

a privilege as well as by the certain and total cessation of the motivating cause.dxlvi

Commentary

2. In prescribing principles governing specifically the cessation of dispensations,

canon 93 supposes a distinction between a dispensation which has a successive tract or
application for the duration of a fixed or indeterminate period of time, e.g., dispensation
from the law of Eucharistic fast (can. 919,§1) for one year or until the person recovers
from the sickness because of which it has been granted, and one which is completed by
one act, e.g., a dispensation from one marriage impediment.

2. According to canon 93, a dispensation which admits successive application ceases

in the same way as privileges, as well as through complete and certain cessation of the
motivating cause, that is, of the cause which induced the superior to grant the
dispensation. In the case of a dispensation with successive application, the grant is
virtually multiple and the cause is valid for each case of application.dxlvii

A dispensation may cease through: revocation by competent authority; renunciation by

the recipient accepted by the competent authority; passage of time or completion of
number of cases; death of the recipient if the concession is personal rather than attached
to the office or dignity; change of circumstances in such a manner that the dispensation
becomes prejudicial to the rights of others or its use illicit (judgment of competent
authority is necessary in this case). It does not cease with the cessation of authority of the
grantor unless it was given ad beneplacitum (can. 81) nor by its non-use or contrary use
(can. 82).

2. The cessation of a dispensation through the cessation of the motivating cause may
take place, for example, when a person who has received a dispensation from the law of
the Eucharistic fast for one year for reason of sickness makes a complete and lasting
recovery before the end of the year. It does not cease, however, if only a subsidiary cause
(one which merely adds its influence to the motivating cause) ceases or if even the
motivating cause ceases only partially or doubtfully. In other words, there should be: a)
cessation of the motivating cause and not merely of an impulsive cause; b) cessation
should be certain and not doubtful; c) cessation must be total and not simply partial.dxlviii

2. A dispensation granted for a single act remains always valid once it is effected
even if the motivating cause may have ceased completely after its concession. In other
words, its concession is absolute and its effect is indivisible. The law which was relaxed
can never again be effective in the same case. Moreover, once granted, a single act
dispensation does not cease during the interval between its concession and actualization
 161

of its effect (i.e., its execution or exercise) even if the motivating cause should cease in
the interim.dxlix Thus for example, once granted, a dispensation from a matrimonial
impediment or from an irregularity for ordination does not cease even if the motivating
cause which had determined its concession has ceased and the marriage or ordination has
not yet taken place. Whether the same principle is also applicable to a vow or an oath
had been disputed by authors. But Cappello rightly argues that it is applicable because
once the bond is relaxed, it does not de se revive.dl

2. Further norms:dli

1) Dispensations reserved to the person of the Roman Pontiff:

- canon 291: dispensation from ecclesiastical clerical celibacy

- canon 1698, §2: dispensation “super rato”
2) Dispensations reserved to the Holy See:

- canons 691-692: indult of departure from an institute of pontifical right by a professed

religious in perpetual vows, with consequent dispensation from vows and from all obligations
deriving from profession (cfr. also canon 727, §1);
- canon 1014: dispensation granted to the consecrating bishop to celebrate alone the
episcopal ordination without participation of other bishops;
- canon 1031, §1: dispensation from age exceeding one year required for presbyteral or
diaconal ordination;
- canon 1078, §2,1o: dispensation from a matrimonial impediment of delict mentioned in
canon1090;
- canon 1196: dispensation from vows which injure a right acquired by others;
- canon 1203: dispensation from a promissory oath, as long as the dispensation tends to
the disadvantage of others who refuse to remit the obligation of the oath;

3) Dispensation that fall within the competence of the diocesan bishop:

- canon 595, §2: dispensation from the constitutions of institutes of consecrated life and
of societies of apostolic life of diocesan right (cfr. can. 732);
- canons 691-692: indult of departure from an institute of diocesan right by a perpetually
professed religious to together with the relative dispensation from vows.

4) Dispensation from irregularities affecting the reception and exercise of sacred orders:

- competence of the Holy See: canon 1047, §§1-3;

- competence of the Ordinary: canon 1047, §4;
- in very urgent occult cases: canon 1048;
- formulation of the petition and the validity of a “general” dispensation: canon 1049.

5) Matrimonial dispensations:

a) dispensation from canonical form:

 162

- on the part of the local Ordinary in mixed marriages (can. 1127, §2) and in marriages
with the dispensation from the impediment of disparity of worship (can. 1129);
- on the part of diocesan bishop, in the case of sanatio in radice (cann. 1161, §1 and
1165, §2).

b) dispensation from impediments of ecclesiastical law:

- the competence of the local Ordinary: canon 1078, §1;

- dispensations reserved to the Holy See: canon 1078, §2;
- one dispensation that cannot be granted: canon 1078, §3.
c) in danger of death:

- the faculty of the local Ordinary: canon 1079, §1;

- the faculty of the parish priest and other sacred ministers: canon 1079, §2;
- the faculty of the confessor: canon 1079, §3;
- clarification: canon 1079, §4.

d) when everything has been prepared for the wedding:

- the faculty of the local ordinary, of the parish priest, etc.: canon 1080.

6) Various dispensations:

- dispensation from the observance of sacred times: faculty of the parish priest and of the
superior of a clerical institute or a society of apostolic life of pontifical right: canon 1245;
- dispensation from a canonical impediment in the election for an ecclesiastical office on
the part of competent authority: canon 180;
- dispensation from the formality for taking possession of a parish by the parish priest, on
the part of local Ordinary: canon 527, §2;
- dispensation from interpellations on the part of local Ordinary in the application of
Pauline Privilege: canon 1144, §2.
 163

TITLE V

STATUTES AND RULES OF ORDER

2. The 1917 Code did not deal explicitly with “statutes” or “rules of order” within
context of the General Norms. But there were several places in the Code where mention
was made of “statutes,” e.g., canons 410, 416 spoke of the “statutes” of cathedral
chapters; canon 689 mentioned the “statutes” regulating associations of the faithful.
Similarly, the Roman Congregations regularly issued statutes even though the Code had
provided no guiding principles for issuing them. Therefore, the Code Commission
decided to introduce into this section of the new Code some basic principles which would
determine the meaning and juridic value of statutes and rules of order.dlii The Eastern
Code provides no canons on this matter.

Canon 94

Statutes

§1. Statutes in the proper sense are ordinances which are established
according to the norm of law in aggregates of persons (universitates personarum)
or of things (universitates rerum) and which define their purpose, constitution,
government, and methods of operation.

§2. The statutes of an aggregate of persons (universitas personarum) bind

only the persons who are its legitimate members; the statutes of an aggregate of
things (universitas rerum), those who direct it.

§3. Those prescripts of statutes established and promulgated by virtue of

legislative power are governed by the prescripts of the canons on laws.

Commentary

2. Canon 94,§1 defines what a statute is. Statutes, the canon affirms, are ordinances
which are established in an aggregate of persons (universitas personarum) or of things
(universitas rerum) according the norms of law.dliii In a proper sense, statutes are
ordinances pertinent to an association, corporation, institute, foundation, etc., existing in
the Church.dliv The scope and content of these ordinances is to define the purpose,
constitution, governance and operations of these institutions and corporations. The
purpose of any institution or corporation in the Church must be compatible with the
mission of the Church. The constitution must express the various ways in which an
organization proposes to achieve its goals. Governance should regulate the relationships
between the members and between members and those who exercise authority in the
organization concerned. The operational aspects should cover the internal and external
 164

activities of the organization.

While dealing with the ordinances of institutes of consecrated life and societies of
apostolic life, the Code quite frequently uses the term Constitutions rather than statutes in
which their fundamental norms are outlined (can. 587, §1).dlv

2. Canon 94,§2 determines the juridic obligations of persons involved in the

organizations governed by the statutes. According to this norm, the statutes proper to an
aggregate of persons (universitas personarum) oblige all legitimate members, while
statutes proper to an aggregate of things (universitas rerum) oblige only those who
govern or direct it. In other words, the obligations arising from the statutes have their
fundamental basis in the free choice of membership in the association or in the free
assumption of the task of directing it.

2. Generally, statutes are not laws because they are not acts of legislative power;
they are norms which regulate the life and activities of the institutes or corporations
existing in the Church. Some of the statutes can have the force of law if they are issued
as such by those who have legislative power. “To the extent that the Church officially
recognizes the statutes of a given organization or group, these statutes becomes a true
source of law,” observes McIntyre.dlvi Such statutes would be governed by the norms on
laws in general (cann. 7-21). Moreover, simple approval by competent authority does not
give the force of law to the statutes of associations, corporations, etc. (cfr. cann. 117,
299,§3; 314; 322,§2; 816,§2; 1232,§1, etc.).dlvii Mere approval does not change the nature
of the statutes unless the legislator approves them in forma specifica. On the other hand,
the constitutions of clerical religious institutes and societies of apostolic life of pontifical
right have the force of law because the Superiors who enact and promulgate them are true
Ordinaries (can. 134,§1) endowed with the power of governance.dlviii

2. The Code expressly mentions the statutes of several institutions or corporations:

cathedral and collegial chapter (cann. 505; 506,§§1-2; 507,§§1-2); institute of
catechumenate (can. 788,§3); non-parochial church (can. 562); college of cardinals (can.
833, 2o); conference of bishops (cann. 450,§1; 451; 452,§1, etc.); seminaries (cann.
237,§2; 239,§3); catholic universities (can. 810,§1); ecclesiastical universities (can.
810,§2); diocesan pastoral council (cann. 496; 497, 1o-2o, etc.). Some of these statutes
would be issued directly by competent ecclesiastical authority, while others would be
formulated directly by the organizations and approved by competent ecclesiastical
authority. Some statutes are intended to integrate common norms and some others
modify common laws.dlix
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Canon 95

Rules of Order

§1. Rules of order (ordines) are rules or norms, which must be observed in
meetings, whether convened by ecclesiastical authority or freely convoked by the
Christian faithful, as well as in other celebrations. They define those things which
pertain to the constitution, direction, and ways of proceeding.

§2. These rules of order bind those who participate in these assemblies or
celebrations.

Commentary

2. While statutes determine the purpose, constitution, governance and operations of

an institute or of a corporation, “rules of order” concern promotion of methodical and
systematic direction of their meetings, assemblies or celebrations. They are intended to
facilitate full and orderly participation by the members of the organization in the
decision-making process sanctioned by the statutes. Therefore, the corporations and
institutes functioning in the Church are to have not only statutes governing their
structures and activities, but also rules of order to direct their social activities. In a proper
sense, therefore, rules of order are norms observed in the assemblies or celebrations
whether convoked by ecclesiastical authority or freely called together by the Christian
faithful. Their scope is to regulate the development of such assemblies or celebrations by
determining their constitution and procedure. The basis of these rules of order are the
laws and statutes governing the organization concerned (e.g., associations of the faithful,
cfr. can. 309). Per se these rules of order are to be approved by competent ecclesiastical
authority and they can be modified or changed according to the exigencies demanded by
the changing circumstances affecting the organization(s) concerned and according to the
norms of law.

2. Canon 95,§2 requires that all those who participate in the assemblies or
celebrations are bound to observe these rules of order. This canon not only encourages
active participation in the management of affairs of an institute or corporation, but also
regulates such participation by members for the good of the people involved. The rules
of order not only serve order, but ultimately they serve the entire community or
organization concerned.

In essence, rules of order contain the basic parliamentary rules governing the discussion,
deliberation, and promotion of programmes through meaningful participation by the
members of the group. Special regulations may govern participation of observers
admitted to the sessions, such as those admitted to the sessions of the Second Vatican
Council. The definition of the rules of order, therefore, is applicable to any type of
assemblies of the faithful gathered together by mutual agreement. Statutes and rules of
order are usually published as such and do not appear in special form.
 166

2. Notable among the rules of order of particular importance to the Church coming
from the Holy Seedlxare: a) The Order of Celebrating the Second Vatican Council
promulgated by Pope John XXIII on 6 August 1962dlxi and subsequently revised by Pope
Paul VI on 13 September 1963;dlxii b) The Order of Celebrating the Synod of Bishops,
issued by Pope Paul VI through the Secretary of State on 18 December 1963.dlxiii The
statutes for the Synod of Bishops were promulgated by Pope Paul VI on 15 September
1965.dlxiv The Order of Synod of Bishops had two subsequent revisions: 24 June 1969dlxv
and 20 August 1971.dlxvi

2. Moreover, the term “Ordo” has also been used in relation to liturgical Rituals
coming from the Holy See since the Council. For example, Order of Initiation of
Christian Adults, Order of Baptism of Infants, Order of Confirmation, Order of Penance,
etc.dlxvii
iCodex iuris canonici, auctoritate Ioannis Pauli PP. II promulgatus, Libreria editrice Vaticana, 1983; English translation: Code of
Canon Law, Latin-English Edition, New English Translation, Prepared under the auspices of the Canon Law Society of America,
Washington, DC, Canon Law Society of America, 1999. This source will be used for English translation of canons of the Code.
iiCodex canonum Ecclesiarum orientalium (= CCEO), auctoritate Ioannis Pauli PP. II promulgatus, fontium annotatione auctus,
Libreria editrice Vaticana, 1995; English translation: Code of Canons of the Eastern Churches, Latin-English Translation, Prepared
under the auspices of the Canon Law Society of America, Washington, DC, Canon Law Society of America, 2001. This source
will be used for English translation of the Eastern Code. For an overview of the Eastern Code, see John D. Faris, “An Overview
of the Code of Canons of the Eastern Churches,” in New Commentary on the Code of Canon Law (= CLSA Commentary 2000),
commissioned by the Canon Law Society of America, ed. by John P. Beal, James A. Coriden, Thomas G. Green, New York,
NY/Mahwah, NJ, Paulist Press, 2000, pp. 27-44.
iiiSee Code of Canon Law, pp. 683-734, for the full text in Latin and English.
ivSee Code of Canons of the Eastern Churches, p. xxv.
vSee John Paul II, Apostolic constitution Sacri canones, 18 October 1990, in Code of Canons of the Eastern Churches, pp. xxiii-
xxiv.
viSee Comm. 3 (1971), p. 81: “De recognescendis normis generalibus C.I.C.”
viiSee Luigi Chiappetta, Il Codice di diritto canonico: commento giuridico-pastorale, Vol. I, Libri I-II, seconda edizione
accresciuta e aggiornata, Roma, Edizioni Dehoniane, 1996, pp. 31-32.
viiiSee canon 204, §2; LG 8; Flannery, Vol. 1, p. 357.
ixOE 2; Flannery, Vol. 1, p. 441.
xOE 3; Flannery, Vol. 1, p. 442.
xiLG 18; Flannery, Vol. 1, p. 370.
xiiOE 3; Flannery, Vol. 1, p. 442; LG 23; Flannery, Vol. 1, pp. 377-378.
xiiiIn can. 111,§1, the Latin Code uses the term “Ecclesia ritualis sui iuris,” while the Oriental Code distinguishes between
“ecclesia sui iuri” and “ritus” in two canons.
xivCCEO c. 27: “Coetus christifidelium hierarchia ad normam iuris iunctus, quem sui iuris expresse vel tacite agnoscit suprema
Ecclesiae auctoritas, vocatur in hoc Codice Ecclesia sui iuris.”
xvCCEO c. 28,§1: “Ritus est patrimonium liturgicum, theologicum, spirituale et disciplinare cultura ac rerum adiunctis historiae
populorum distinctum, quod modo fidei vivendae uniuscuiusque Ecclesiae sui iuris proprio exprimitur.”
xvi(A). Alexandrian: 1. Coptic (Patriarchate), 2. Ethiopian. (B). Antiochene: 3. Malankara, 4. Maronite (Patriarchate), 5. Syrian
(Patriarchate). (C). Constantinopolitan or Byzantine: 6. Albanian, 7. Byelorussian, 8. Bulgarian, 9. Greek, 10. Hungarian, 11.
Italo-Albanian, 12. Melkite (Patriarchate), 13. Romanian, 14. Russian, 15. Ruthenian, 16. Slovak, 17. Ukrainian (Major
Archiepiscopate), 18. Yugoslavian. (D). Armenian: Armenian (Patriarchate). (E). Chaldean or East Syrian: 20. Chaldean
(Patriarchate), 21. Syro-Malabar. For a brief description of these Churches, see V.J. Pospishil, Eastern Catholic Marriage Law
According to the Code of Canons of the Eastern Churches, Brooklyn, NY, Saint Maron Publications, 1991, pp. 96-113.
xviiSee CCEO c. 56 for a canonical definition of Patriarch. There are six Eastern rite Catholic Patriarchs. See also OE 7;
Flannery, Vol. 1, p. 444.
xviiiCCEO c. 151 defines a Major Archbishop. There is only two Major Archiepiscopates in the Catholic Church: Ukrainian and
Syro-Malabar.
xixCCEO c. 155 deals with the notion of a Metropolitan Church sui iuris. Three of the Oriental rite autonomous churches are
Metropolitan: Ethiopian, Malankara and Ruthenian.
xxCCEO c. 28, §2 reads: “The rites dealt with in this Code, unless it is established otherwise, are those which arose from the
Alexandrian, Antiochene, Armenian, Chaldean and Constantinopolitan traditions.” See LG 23; Flannery, Vol. 1, pp. 377-378.
xxiThe decree on Ecumenism states: “The first divisions occurred in the East, either because of the dispute over the dogmatic
formulae of the Councils of Ephesus and Chalcedon, or later by the dissolving of ecclesiastical communion between the Eastern
Patriarchates and the Roman See.” See UR 13, Flannery, Vol. 1, p. 463. For a brief historical overview of the development of
Eastern Churches, see G.A. Maloney, art., “Eastern Churches,” in New Catholic Encyclopedia, New York, McGraw-Hill Book
Company, 1967, Vol. 5, pp. 13-21; F. Dvornik, art., “Eastern Schism,” in ibid., pp. 21-25; B. Schultze, art., “Eastern Churches,” in
Encyclopedia of Theology: The Concise Sacramentum mundi, ed. K. Rahner, New York, The Seabury Press, 1975, pp. 380-394.
xxiiOE 5; Flannery, Vol. 1, p. 443.
xxiiiCanon 1 of the 1917 Code read: “Even though the discipline of the Oriental Church is also frequently referred to in the Code
of Canon Law, it concerns the Latin Church alone, and it does not bind the Oriental Church except in those points which of their
very nature affect also the Oriental Church.”
xxivSee cann. 350, §§1 & 3 and 1015, §2.
xxvSee cann. 844, §3 and 1127, §1.
xxviSee cann. 111-112, 214, 372, §2, 383, §2, 450, §1, 476, 479, §2, 518, 846, §2, 923, 991, 1021, 1109, 1248, §1.
xxviiSee cann. 330, 336,749, 840, 845, 849, 897.
xxviiiSee cann. 113, §1, 331-333, 333, §3, 336, 381, 898, 1404, 1084, 1085,1091.
xxixCCEO c. 1: “Canones huius Codicis omnes et solas Ecclesias orientales catholicas respiciunt, nisi, relationes cum Ecclesia
latina quod attinet, aliud express statuitur.”
xxxSee, for example, CCEO cc. 17, 29,§1, 30, 31, 32, 34, 35, 36, 37, 193, 544, 674, 696, 811.
xxxiUR 16; Flannery, Vol. 1, p. 466.
xxxiiSee, for example, CCEO cc. 780, 781, 896-901, 902-908.
xxxiiiSee Chiappetta, pp. 33-34.
xxxivCCEO c. 3 reads: “The Code, although it often refers to the prescripts of the liturgical books, does not for the most part
determine liturgical matters; therefore, these prescripts are to be diligently observed, unless they are contrary to the canons of the
Code.”
xxxvLG 8; Flannery, Vol. 1, p. 357.
xxxviThe term “rites” mentioned in canon 2, in its general connotation, stands for any religious function, but in its more restricted
sense it means prayers and formulas required to be recited in a liturgical function. In canon 2 of the 1917 Code, the term “rites”
was combined with “ceremonies.” The latter signified external acts and gestures which accompany the prayers and the public
exercise of divine worship. See J.A. Abbo-J.D. Hannan, The Sacred Canons: A Concise Presentation of the Norms of the Church,
rev. ed., St. Louis, B. Herder Co., 1957, Vol. 1, p. 6. The new Code does not mention the term “ceremonies”; it could mean that
whatever was signified by it is subsumed under the term “rites.”
xxxviiSee AAS, 56 (1964), pp. 97-138; Flannery, Vol. 1, pp. 1-37.
xxxviiiSee AAS, 61 (1969), pp. 297-305; CLD, 7, pp. 238-245.
xxxixSee Apost. Const. Constans Nobis, in AAS, 67 (1975), pp. 417-420; CLD, 8, pp. 224-227.
xlAAS, 67 (1975), p. 419; CLD, 8, p. 226.
xliFor liturgical changes effected in light of the new Code, see Notitiae, 19 (1983), pp. 540-555. Revisions in liturgy continue to
take place even today. But any revision or change must be in conformity of the canons of the Code.
xliiSee John M. Huels, “”Introductory Canons [cc. 1-6],” in CLSA Commenatry 2000, p. 50.
xliiiCCEO c. 4 has identical formula on this matter. It reads: “The canons of the Code neither abrogate nor derogate from the pacts
entered into by the Holy See (Sancta Sede) with nations or other political societies. They therefore continue in force as they have
been up to the present notwithstanding any contrary prescripts of the Code.”
xlivGS 76; Flannery, Vol. 1, p. 985.
xlvGenerally a concordat or agreement (conventio) is understood as “a Church-State agreement or public treaty, having the force
of international law, between the Holy See and some sovereign civil government, by which the Church communicates or delegates
some of her powers to the State in order that her more important rights may be respected. It is an agreement in the category
expressed by the juridical formula, do ut des.” See Abbo-Hannan, pp. 6-7; E.F. Regatillo, Institutiones iuris canonici, Santander,
Sal Terrae, 1941, Vol. 1, p. 28; U. Beste, Introductio in Codicem, 4th rev. ed., Neapoli, M. D'Auria, 1956, pp. 55; T.L. Bouscaren,
A.C. Ellis and F.N. Korth, Canon Law: A Text and Commentary, 4th rev. ed., Milwaukee, The Bruce Publishing Company, 1966,
p. 20.
xlviAbrogation means total revocation of a law made directly and expressly by a competent superior, e.g., the abrogation of the
1917 Code by the new Code.
xlviiDerogation means partial revocation of a law. Obrogation is taking away of a law through a contrary law. Subrogation is an
addition to a law.
xlviiiCD 20; Flannery, Vol. 1, p. 575; ES I 18; Flannery, Vol. 1, p. 602.
xlixCD 20; Flannery, Vol. 1, p. 575.
lSee Black’s Law Dictionary, by Henry Campbell Black, sixth edition, St. Paul, MN, West Publishing Co., 1990, p. 331.
liSee ibid., p. 290.
liiSee Chiappetta, pp. 35-36.
liiiSee CLSA Commentary 2000, p. 51.
livAs quoted in Chiappetta, p. 36. Here the author presents a brief summary of different theories on the nature of concordats.
Also see Regatillo, pp. 29-31; Beste, pp. 55-56.
lvGS 76; Flannery, Vol. 1, p. 985.
lviSee Chiappetta, p. 37 for several countries with pacts or agreements with the Church since Vatican II:1964: Austria, Hungary,
Venezuela, Tunisia; 1965: Lower Saxony (Germany); 1966: Bavaria, Argentina, Yugoslavia; 1968: Austria and Bavaria (further
accord); 1969: Austria (new accord); 1973: Colombia; 1976: Spain; 1979: Spain (new accord); 1980: Peru; 1983: Ecuador; 1984:
Morocco; 1985: Italy (new concordat); 1986: Malta.
lviiCCEO c. 5 reads: “Acquired rights as well as privileges up to this time granted by the Apostolic See to physical or juridical
persons, which are in use and have not been revoked, remain intact unless they are expressly revoked by the canons of this Code.”
lviiiSee Chiappetta, p. 38.
lixSee L. Örsy, “Commentary [cc. 1-28],” in J.A. Coriden, T.J. Green and D.E. Heintschel, (eds.) The Code of Canon Law, A Text
and Commentary (= CLSA Commentary 1985), commissioned by the Canon Law Society of America, New York/Mahwah, Paulist
Press, 1985, p. 27; Abbo-Hannan, p. 7; Beste, pp. 56-57; Regatillo, p. 31.
lxSee Abbo-Hannan, p. 7.
lxiSee Chiappetta, p. 38; CLSA Commentary 1985, p. 27.
lxiiSee cann. 36, 38, 50, 121, 122, 123, 192, 326,§2, 562, 616,§1, 1196.
lxiiiThe term “expressly” is opposed to “tacitly.” Expressly implies a positive, certain and formal act clearly expressed in words,
or in writing or in equivalent signs. On the other hand, “tacitly” is to be ascertained by the silence which is neither clear nor
certain. Furthermore, what is express can be either explicit or implicit. For example, the delegation to assist at a marriage when
the pastor gives his assistant a copy of the file and the marriage register without explicitly telling him to assist at the particular
marriage is implicit. Therefore, what is explicit is express, but what is express is not always explicit because what is express can be
simply implicit. As a result: a) if a canon has the term “expressly” (see cann. 5,§1, 6,§2, 11, 15,§1, 20, 91, etc.), it can mean
explicit or implicit, but not tacit or presumed, which is a simple conjecture; b) if the term “explicitly” is used (e.g., cann. 135,§2,
157, 697,2o, etc.) it cannot be equivocated with “implicitly.” See Chiappetta, pp. 38-39.
lxivAccording to commentators, the word “use” can mean actual or “facultative” use. Hence, in this canon it must be understood
in the latter sense. See Regatillo, p. 34; F.J. Urrutia, De normis generalibus: adnotationes in Codicem, Liber I, Romae, Pontificia
Universitas Gregoriana, 1983, p. 12.
lxvSee Chiappetta, p. 39.
lxviSee Beste, p. 57. The term “indult” occurs about 20 times in the new Code. Therefore, it has a definite meaning. See X.
Ochoa, Index verborum ac locutionum Codicis iuris canonici, Roma, Commentarium pro Religiosis, 1983, p. 206.
lxviiCCEO c. 6, 2o simply states: “all customs reprobated by the canons of this Code or which are contrary to them, unless they
are centennial or immemorial, are revoked.” According to this canon, customs, whether universal or particular, centenary or
immemorial, which are reprobated by the canons of the Oriental Code are suppressed. Can they be revived in the future? The
Code does not address this question. All other customs contrary to the canons of the Oriental Code, excepting centenary or
immemorial, are also revoked. Thus, centenary or immemorial customs not reprobated as well as those contrary to the canons of
the Oriental Code and customs praeter ius are not affected by the prescript of CCEO c. 6, 2o. According to CCEO c. 1509, a
praeter ius custom is revoked only through a contrary custom or contrary law.
lxviiiSee Regatillo, p. 34.
lxixSee Abbo-Hannan, p. 9.
lxxR. Naz, Traité de droit canonique, Paris, Letouzey et Ané, 1955, Vol. 1, p. 77.
lxxiThe juridical significance of the terms “reprobation,” “suppression,” “prohibition” and “toleration” must be understood:
“Reprobatio”' (reprobantur) as used in canon 5, implies not only a prohibition, but a severe rejection or censure by subsequent
canons of the Code. Such rejection gives rise to the presumption that the customs in question are no longer considered reasonable
(see can. 24, §2) and henceforth deprived of any legal or juridic character and obligatory force. In effect “reprobation” takes away
the juridic force of the customs reprobated by the canons, stops the time from running so that they do not acquire the strength of
law, and it orders that the practice involved in such customs be corrected. Mere “prohibition” does not permit time to run;
“suppressio”' interrupts the process of time to acquire force of law, and perhaps takes away the force of law already acquired;
“toleration,” while implying suppression, permits continuation of the custom that is revoked. See Urrutia, p. 12.
lxxiiSuch customs are mentioned, for example, in canons 396, §2, 423, §1, 526, §2, 1076, 1287, §1, 1425, §1.
lxxiiiSee Chiappetta, p. 40.
lxxivSee Regatillo, p. 35.
lxxvSee ibid.
lxxviThe Oriental Code has a much shorter formula on this point. CCEO c. 6,1 o: “With the entry into force of the Code: all
common or particular laws contrary to the canons of the Code or which concern matters which are integrally reordered in this
Code are abrogated.”
lxxviiSee, for example, cann. 119, 127, 165, 167, §1, 174, §1, 176, §5, 191, §1, 266, §2, 438, 553, §2.
lxxviiiFor a recent study on this particular issue, see Patricia Smith, “ Determining the Integral Reordering of Law: Tools for the
Canonist,” in StC, 35 (2001), pp. 97-132.
lxxixSee Comm. 14 (1982), p. 131, can. 6, 1o.
lxxxSee Chiappetta, p. 42.
lxxxiThe text of this canon was as follows: “2o. Canons which restate integrally (ex integro) the ancient law must be interpreted
upon the authority of the ancient law and, therefore, in accordance with the explanations of it given by approved authors; 3 o.
Canons which agree with the ancient law only in part (ex parte tantum) must be interpreted in the light of the ancient law so far as
they agree with it, and according to their own wording so far as they differ from it; 4 o. If there is doubt whether a canon contained
in the Code differs from the ancient law, the ancient law must be retained.”
lxxxiiCCEO c. 2: “The canons of the Code, in which the ancient law of the Eastern Churches has been mostly received or adapted,
are to be assessed chiefly by that law.”
lxxxiiiSee CLSA Commenatry 2000, p. 55.
lxxxivSee Javier Otaduy, “Titulus I: De legibus ecclesiasticis,” in Comentario exegético al Código de derecho canonico (=
Comentario exegético I), eds. A. Marzoa, J. Miras y R. Rodríguez-Ocaña, Vol. I, Segunda edición, Pamplona, EUNSA, 1997, p.
296; CLSA Commentary 2000, p. 56.
lxxxvSee CLSA Commentary 2000, p. 56.
lxxxviCCEO c. 1488: “Laws are established by promulgation.”
lxxxviiSee Comm. 14 (1982), pp. 131-132.
lxxxviiiSee Regatillo, p. 32.
lxxxixSumma theol., Ia-IIae, q. 90, art. 4, ad 1: “Ordinatio rationis ad bonum commune ab eo qui curam communitatis habet
promulgata.”
xcSee Regatillo, p. 39.
xciFor a complete view of the function and competence of different Roman Dicasteries, see Paul VI, Apost. Const., Regimini
ecclesiae universae, 15 August 1967, in AAS, 59(1967), pp. 885-928; English translation in CLD, 6, pp. 324-357; Revised in 1988,
see John Paul II, Apost. Const., Pastor bonus, 28 June 1988, in AAS, 80(1988), pp. 841-930; English translation in CLSA
translation: Code of Canon Law (1999), pp. 679-751.
xciiSee Regatillo, p. 41.
xciiiSee ibid.; for a discussion on different views on the nature of promulgation, see M.N. Lohmuller, The Promulgation of Law,
Canon Law Studies No. 241, Washington, DC, The Catholic University of America, 1947, pp. 28-38.
xcivThere is a slight difference between this Latin canon and CCEO c. 1489, its equivalent. CCEO c. 1489 reads as follows:

Ҥ1. Laws issued by the Apostolic See are promulgated in the official commentary, Acta Apostolicae Sedis, unless another manner
of promulgation has been prescribed in special circumstances. They begin to oblige after three months have elapsed from the date
of that issue of the Acta unless they oblige immediately from the very nature of the matter or a shorter or longer suspensive period
(vacatio) has been expressly established.

xcvSee Abbo-Hannan, p. 19.

xcviSee ibid.
xcviiSee ibid., p. 20.
xcviiiSee ibid., pp. 16-17; Regatillo, pp. 42-43; F. Maroto, Institutions iuris canonici ad normam novi Codicis, Romae, Apud
Commentarium pro Relgiosis, 1919-1921, Vol. 1, p. 200, n. 193.
xcixSee L. Örsy, “Interpretation of Laws: New Variation on an Old Theme,” in StC, 17 (1983), pp. 103-104.
cCCEO c. 1494 is literally identical.
ciSee Beste, p. 67.
ciiSee Abbo-Hannan, p. 21.
ciiiSee ibid.; F.M. Cappello, Summa iuris canonici, 4th ed., Romae, Apud Aedes Universitatis Gregorianae, 1945, Vol. 1, p. 55.
civThe text of CCEO c. 1495 is identically the same as this canon.
cvSee Beste, p. 69; Chiappetta, pp. 45, 49.
cviThe uncertain meaning of the expression “vel aequivalenter” has been cited by the Code Commission as the reason for its
suppression. See Comm. 16 (1984), p. 146, can. 11.
cviiSee Chiappetta, p. 50.
cviiiSee ibid.
cixSee Beste, p. 70.
cxSee ibid.
cxiCCEO c. 1490 is identical to this canon. However, see CCEO cc. 780-781 for a special provision concerning non-Catholics
whether baptized or not.
cxiiSee Regatillo, p. 50.
cxiiiIbid.; Beste, p. 70; Abbo-Hannan, p. 23.
cxivSee Beste, p. 71; Regatillo, p. 50.
cxvCfr. Regatillo, pp. 50-51; Cappello, pp. 62-63; Beste, p. 72; Chiappetta, p. 54.
cxviSee Regatillo, pp. 51-52; Beste, p. 71.
cxviiSee Comm. 14 (1982), pp. 132-133.
cxviiiCanons 12 and 13 of CIC are represented substantially in CCEO c. 1491. It is important to note CCEO cc. 1492 and 1493.
CCEO c. 1492 states: “Laws issued by the supreme authority of the Church, which do not expressly indicate the passive subject,
affect the Christian faithful of the Eastern Churches only insofar as they concern matters of faith or morals or declarations of
divine law, explicitly decide questions regarding these Christian faithful, or concern favors which contain nothing contrary to the
Eastern rites.” And CCEO c. 1493 reads: “§1. Under the name common law in this Code come, besides the laws and legitimate
customs of the entire Church, also the laws and legitimate customs common to all the Eastern Churches. §2. However, under the
name particular law come all laws, legitimate customs, statutes and other norms of law, which are neither common to the entire
Church nor to all the Eastern Churches.”
cxixSee Cappello, p. 64.
cxxFor a discussion on this issue, see G. Michiels, Normae generales iuris canonici, 2nd ed., Tornaci, Desclée, 1949, Vol. 1, pp.
295-298.
cxxiCCEO c. 1491 contains the prescripts on this matter.
cxxiiSee Comm. 3 (1971), p. 85.
cxxiiiThe distinction between “territorial” and “personal” is applicable only to particular laws. See Comm. 16 (1984), p. 145, can.
8.
cxxivSee Abbo-Hannan, p. 26.
cxxvIbid., p. 27.
cxxviIbid.; also see Regatillo, p. 54.
cxxviiSee Chiappetta, p. 58.
cxxviiiCCEO c. 1496 is the equivalent of this canon.
cxxixSee Abbo-Hannan, p. 28; Regatillo, p. 57; Beste, p. 75.
cxxxSee Regatillo, p. 57.
cxxxiIbid., p. 58.
cxxxiiIbid.
cxxxiiiSee CCEO c. 1497 for the equivalent of this canon.
cxxxivSee Chiappetta, p. 61.
cxxxvSee Regatillo, pp. 58-59.
cxxxviIbid., p. 59.
cxxxviiIbid.
cxxxviiiCCEO c. 1498 is identically the same.
cxxxixAAS, 72 (1980), p. 105. On 21 December 1979, the Pontifical Commission for the Interpretation of the Decrees of Vatican
II gave a negative reply to the following doubt concerning the minister of confirmation: “Whether a priest may validly (valeat)
confirm an adult who, having been baptized in the Catholic Church, and afterwards through no fault of his/her own never
practised, is being admitted to the full practice of the faith?”
cxl In the same response given above, the Pontifical Commission gave an affirmative extensive interpretation to canon 1044
(1917 Code): “Whether a deacon [...], delegated to assist at marriages [...], may dispense from matrimonial impediments as per
canon 1044.” On 1 August 1985, the Code Commission gave an affirmative decision to the question whether the decrees
mentioned in canon 455, §1 included not only general decrees that are laws but also general executory decrees, thus extending the
scope of the canon. See AAS, 77 (1985), p. 771; again on 6 August 1987 the Code Commission gave an affirmative decision to the
question on canon 1103: “Whether the defect of consent referred to in canon 1103 is able to be applied to marriages of non-
Catholics.” This affirmative response extended the scope of the said canon.
cxliOn 7 August 1984, the Code Commission responded to the question: “Whether, according to canon 917, one who has already
received the Most Holy Eucharist may receive it on the same day only a second time, or as often as one participates in the
celebration of the Eucharist? Affirmatively to the first and Negatively to the second.” See AAS, 76 (1984), p. 746. This response
restricted reception of Holy Communion to only twice a day. Another example of restrictive interpretation: on 3 September 1987,
the Code Commission was asked whether the diocesan bishop is able to dispense from the prescript of canon 767, §1, by which the
homily is reserved to priests or deacons. The response was in the negative, thus restricting the scope of the canon. See AAS, 79
(1987), p. 1249.
cxliiSee Abbo-Hannan, p. 32.
cxliii“Unde ius prodit, interpretatio quoque procedat” c. 31, I, de sententia excommunicationis, V, 39; R.I. 46, in VIo).
cxlivSee Beste, p. 80; Abbo-Hannan, p. 33.
cxlvSee Abbo-Hannan, p. 35.
cxlviIbid.; Cappello, p. 70.
cxlviiSee Cappello, p. 70; Abbo-Hannan, p. 35; Chiappetta, p. 65.
cxlviiiCCEO c. 1499 is the equivalent of this canon.
cxlixSee Abbo-Hannan, pp. 35-36; Beste, p. 81
clSee Abbo-Hannan, p. 36.
cliIbid.
cliiSee Beste, pp. 81-82.
cliiiBeste, p. 83.
clivSee Chiappetta, p. 67; Regatillo, p. 63.
clvSee Örsy, p. 102.
clviIbid.
clviiSumma theol., IIa-IIae, q. 120, a. 1.
clviiiCCEO c. 1500 is identical to this canon.
clixFor the Regulae Iuris, in VIo, see Albert Gauthier, Roman Law and Its Contribution to the Development of Canon Law, Ottawa,
Saint Paul University, 1996, pp. 107-117; and Regulae Iuris in the Decretals of Gregory IX, pp. 119-120.
clxSee Beste, p. 85.
clxiSee Chiappetta, p. 67; J.A. Coriden, “Rules for Interpreters,” in The Jurist, 42 (1982), p. 301.
clxiiSee Chiappetta, p. 68.
clxiiiIbid.; Regatillo, p. 64; Abbo-Hannan, p. 40.
clxiv Chiappetta, p. 68; Cappello, p. 69.
clxvSee Beste, pp. 85-86; Abbo-Hannan, pp. 40-41; Chiappetta, p. 68.
clxviCCEO c. 1501 reads: “If an express prescript of law is lacking in a certain matter, a case, unless it is penal, must be resolved
according to the canons of the synods and the holy fathers, legitimate custom, the general principles of canon law applied with
equity, ecclesiastical jurisprudence, and the common and constant canonical doctrine.” The supplementary sources of law
according to this canon are: the canons of the Synods of Holy Fathers and this would include Vatican II documents; legitimate
customs (not mentioned in CIC); the general principles of canon law (the latin canon is much broader in its expression and
implication); the ecclesiastical jurisprudence (this allows particular churches to develop their own jurisprudence as well as to have
recourse to the jurisprudence of the Roman Curia); and common and constant opinion of doctors (same as in CIC). The
differences in both Codes will have practical relevance in the interpretation of canons of these Codes.
clxviiSee Chiappetta, p. 69.
clxviiiSee Abbo-Hannan, p. 42; Beste, p. 87; Chiappetta, pp. 69-70.
clxixSee Abbo-Hannan, p. 43.
clxxSee Cappello, p. 73.
clxxiSee Regatillo, p. 66.
clxxiiIn his address to the Roman Rota, on 30 January 1986, Pope John Paul II said: “The jurisprudence of the Roman Rota has
always been and must continue to be a sure point of reference for them [regional and diocesan ecclesiastical courts].” See Origins,
15 (1986), p. 610.
clxxiiiSee Abbo-Hannan, p. 43; Beste, p. 88.
clxxivSee Chiappetta, p. 69.
clxxvIbid., p. 71.
clxxviCCEO c. 1502 has a slightly modified version of this canon in order to adapt it to the constitution of Eastern Churches. It
reads: Ҥ1. A later law abrogates, or derogates from, an earlier law if it states so expressly, is directly contrary to it, or completely
reorders the entire matter of the earlier law.
Ҥ2. However, a law of the common law, unless expressly provided otherwise in the law itself, does not derogate from a law of the
particular law nor does a law of the particular law issued for a Church sui iuris derogate from the more particular law in force in
that Church.”
clxxviiSee Abbo-Hannan, p. 46.
clxxviiiSee Regatillo, p. 68.
clxxixCCEO c. 1503 is identical.
clxxxSee Regatillo, p. 69.
clxxxiSee ibid.
clxxxiiIbid.
clxxxiiiCCEO c. 1504 is identical to this canon.
clxxxivSee Chiappetta, p. 74.
clxxxvIbid., p. 75.
clxxxviIbid.
clxxxviiSee Chiappetta, p. 77.
clxxxviiiThe parallel text in the Oriental Code (CCEO c. 1506,§1) expresses the notion of ecclesiastical custom in a theologically
richer formula than canon 23 of CIC. It reads: “A custom of the Christian community, insofar as it corresponds to the action of the
Holy Spirit in the ecclesial body, can obtain the force of law.” The spirit and the textual formula of this canon is quite different. It
emphasizes the role of the Holy Spirit in the emergence of customs in a Christian community. Neither the community nor the
legislator can overlook this element. From a theological point of view, therefore, the role of the Holy Spirit, just as it should be in
any action of the ecclesial community, is a distinctive feature of ecclesiastical legislation and custom, whether it be Latin or
Oriental, compared to civil law or civil custom.
clxxxixSee Pontificia Commissio Codici Iuris Canonici Recognoscendo, Relatio complectens synthesim animadversionum ab
em.mis atque exc.mis Patribus Commissionis ad novissimum schema Codicis iuris canonici exhibitarum, cum responsionibus a
Secretaria et consultoribus datis, (Patribus Commissionis stricte reservata), [Romae], Typis Polyglottis Vaticanis, 1981(= 1981
Relatio), pp. 25-26; Comm. 14 (1982), pp. 135-136.
cxcSee A. Cicognani, Canon Law, 2nd rev. ed., trans. J. O’Hara and F. Brennan, Philadelphia, Dolphin Press, 1935, p. 643;
Regatillo, p. 71.
cxciSee Abbo-Hannan, p. 52; J.P. McIntyre, Customary Law in the “Corpus iuris canonici,” Canon Law Studies No. 527,
Washington, DC, The Catholic University of America, U.M.I., 1989, pp. 10-11.
cxciiSee Abbo-Hannan, p. 52.
cxciiiSee Regatillo, p. 72.
cxcivSee ibid., p. 73.
cxcvSee Abbo-Hannan, p. 53.
cxcviSee ibid.
cxcviiCCEO c. 1506, §2 states: “No custom can in any way derogate from divine law.”
cxcviiiCCEO c. 1507, §2 has a much briefer text: “A custom which is expressly reprobated by law is not reasonable one.”
cxcixSee CCEO c. 1507,§§1 & 2 for its equivalent in the Eastern Code.
cc Summa theol., Ia IIae, q. 97, a. 3.
cciSee Abbo-Hannan, p. 55; Beste, p. 96.
cciiFor examples of customs which were expressly reprobated in the 1917 Code, see Abbo-Hannan, pp. 56-57.
cciiiCfr. Cappello, p. 90.
ccivSee Chiappetta, p. 80.
ccvThis prescript is found in part in CCEO c. 1507, §1.
ccviSee CLD, 8, pp. 3-29, here at p. 11.
ccviiIbid.
ccviiiSee Chiappetta, p. 79; also see Beste, pp. 94-95; Cappello, pp. 88-89; Abbo-Hannan, p. 54 .
ccixSee Cappello, pp. 89-09; Chiappetta, p. 80.
ccxCCEO c. 1507, §3 reads: “A custom contrary to the canon law now in force or one beyond a canonical law (praeter legem
canonicam) obtains the force of law only if it has been legitimately observed for thirty continuous and complete years. Only a
centenary or immemorial custom, however, can prevail against a canonical law which contains a clause prohibiting future
customs.”
ccxiSee Urrutia, p. 26; Chiappetta, p. 81.
ccxiiSee 1981 Relatio, p. 26.
ccxiiiSee Cappello, p. 91.
ccxivCCEO c. 1508 is identically the same as the Latin text since it expresses an established universal principle.
ccxv“Inspicimus in obscuris quod est verisimilis, vel quod plerumque fieri consuevit” (R.I. 45 in VIo).
ccxviSee Coriden, p. 287.
ccxviiSee Abbo-Hannan, pp. 57-58; Beste, p. 98.
ccxviiiCoriden, p. 288, cites as an example the practice of American Bishops with regard to the required approval (1917 Code, cc.
1530-1532) for the alienation of property. For a case where the customary practice was presented as the best interpreter of law
(can. 1373,§2), see CLD, 5, pp. 363-365. This case involved a Congregation of Teaching Brothers who taught religion in schools
they ran, but the bishop of the diocese forbade them to do so in accord with canon 1373, §2 of CIC 17. But the Congregation for
Religious upheld the right of the Brothers to teach religion in their schools on the basis of the longstanding custom, although it was
contrary to the current law.
ccxixSee Chiappetta, p. 81.
ccxxSee Coriden, p. 288.
ccxxiSee CCEO c. 1509, which is identical to the Latin canon (25) on revocation of custom.
ccxxiiSee Cappello, p. 94; Regatillo, p. 76; Chiappetta, p. 81
ccxxiiiSee Abbo-Hannan, p. 58.
ccxxivSee Beste, p. 99.
ccxxvIbid., Abbo-Hannan, p. 58.
ccxxviSee Abbo-Hannan, p. 59; Beste, p. 99-100.
ccxxviiSee Beste, p. 99; Abbo-Hannan, p. 59.
ccxxviiiSee Comm. 1 (1969), p. 83.
ccxxixSee Chiappetta, p. 82.
ccxxxIbid., p. 83.
ccxxxiSee ibid.
ccxxxiiSee Comm. 3 (1971), p. 92.
ccxxxiiiSee Michael R. Moodie, “General Decrees and Instructions [cc. 29-340],” in CLSA Commentary 2000, p. 97; the response
of the Pontifical Council for the Interpretation of Legislative Texts is in AAS, 77 (1985), p. 771.
ccxxxivThe Eastern Code does not have a title equivalent to Title III of CIC’s General Norms. In the absence of these general
principles governing decrees and instructions, the Eastern Code may have to adopt these norms to supplement the lacuna legis
concerning this subject matter.
ccxxxvFor two important studies on this subject matter, see John M. Huels, “A Theory of Juridical Documents Based on Canons
29-34,” in StC, 32 (1998), pp. 337-370; Francis G. Morrisey, Papal and Curial Pronouncements: Their Canonical Significance in
Light of the Code of Canon Law, 2d edition revised and updated by Michel Thériault, Ottawa, Faculty of Canon Law, Saint
University, 1995.
ccxxxviSee, for example, Cappello, pp. 80-84.
ccxxxviiSee Comm. 9 (1977), 232.
ccxxxviiiSee Cappello, p. 83.
ccxxxixSee Chiappetta, p. 83.
ccxlSee Cappello, p. 83.
ccxliSee AAS, 57 (1965), pp. 76-89.
ccxliiSee AAS, 59 (1967), pp. 165-166.
ccxliiiSee AAS, 74 (1982), pp. 742-745.
ccxlivSee Chiappetta, pp. 84-85.
ccxlvSee Chiappetta, p. 84.
ccxlviSee CLSA Commentary 2000, p. 98; also see Urrutia, p. 27.
ccxlviiSee Comm. 14 (1982), p. 136: also 1981 Relatio, p. 26.
ccxlviiiSee Chiappetta, p. 86.
ccxlixSee Cappello, p. 83.
cclSee ibid., p. 84.
ccliThe Code Commission stated that instructions are not laws, and therefore, “laws cannot be issued in the form of instructions.”
See Comm. 14 (1982), p. 136, can. 34.
ccliiSee CLD, 1, p. 56.
ccliiiSee Origins, 27 (1997-1998), pp. 397, 399-409. For a critical review of this Instruction, see John M. Huels, “Interpreting an
Instruction Approved in forma specifica,” in StC, 32 (1998), pp. 5-46.
cclivThe Oriental Code adopts a slightly different approach in regard to the subject matter of “Singular Administrative Acts'.” The
equivalent title reads: “Administrative Acts” in Chapter III. Since the general norms in the Oriental Code do not deal with General
Decrees and Instructions, it rightly avoids specifying administrative acts as “singular” as the Latin Code has done. The first seven
canons (cann. 1510-1516) of Chapter III lay down general principles concerning the notion, time of effectiveness, interpretation,
revocation, execution and conditions of administrative acts. Art. I (cann. 1517-1520) of this Chapter deals with the procedure to
be followed in issuing extra-judicial decrees, and Art. II (cann. 1521-1526) provides principles governing the execution of
administrative acts. Art. III entitled: “Rescripts” has four preliminary canons (cann. 1527-1530) which outline the general
principles applicable to the subject matter of rescripts. Art. III is then rightly subdivided into two sections: 1 o Privileges (cann.
1531-1535) and 2o Dispensations (cann. 1536-1539). These canons are technically more refined and systematic than their
equivalents in CIC. There are some variations between these canons and their counterparts in CIC which are of canonical
importance especially in the interpretation of some canons. Where necessary, these variations will be noted in this commentary.
cclv“Uno atto di governo posto dall’autorità competente nell’esercizio delle sue funzioni, e diretto a persone singole o anche a
comunità, in casi concreti e particolari” (Chiappetta, p. 89).
cclviSee ibid.
cclviiIbid.
cclviiiCCEO c. 1510, §1, which does not specify administrative acts as does the Latin canon, reads: “Administrative acts can be
placed, within the limits of their competence, by those who have executive power of governance as well as by those who have
received such power explicitly or implicitly by the law itself or by legitimate delegation.”
cclixSee Bouscaren, p. 65; Abbo-Hannan, p. 62.
cclxSee Abbo-Hannan, p. 63
cclxiCCEO includes in c. 1512, all principles of interpretation applicable to decrees, rescripts, privileges and dispensations.
Ҥ1. An administrative act must be understood according to the proper meaning of the words and the common manner of speaking
and must not be extended to other cases besides those expressed.
Ҥ2. In a case of doubt, an administrative act which refers to litigation, pertains to threatening or imposing penalties, restricts the
rights of a person, injures the acquired rights of others, or is contrary to the law which benefits private person, receives a strict
interpretation; other administrative decrees, however, receive a broad interpretation.
Ҥ3. In the case of privileges, that interpretation must always be used so that the person to whom the privilege was
granted actually does obtain some favor.

cclxiiSee Bouscaren, p. 34.

cclxiiiSee Chiappetta, p. 91.
cclxivSee canons 16, §3 and 52 which exclude an extensive interpretation of an administrative act that would go beyond the case
for which it is given.
cclxvCCEO c. 1514 is substantially same as the Latin canon. It reads: “An administrative act which regards the external forum,
with due regard for cann. 1520 and 1527, must be put in writing. Furthermore, if it is given in commissorial form, the act of that
execution must be put into writing.”
cclxviSee Cappello, p. 111.
cclxviiIbid., p. 126.
cclxviiiFor other examples of canons requiring “written form” for administrative acts, see canons 1215, §1; 1265, §1; 1288; 1298;
1361,§2.
cclxix For similar examples, see canons 190, §3; 193, §4; 312, §2; 474; 638,§3; 1281,§ 1; 1304, §1.
cclxxSee Chiappetta, p. 92.
cclxxiCCEO c. 1515 is literally identical.
cclxxiiSee Abbo-Hannan, p. 78.
cclxxiiiCCEO c. 1516 has a slightly different norm: “Conditions in administrative acts are considered added for validity only
when they are expressed by the particles “if” (si), “unless” (nisi), “provided that” (dummodo) or by another particle having the
same meaning in the vernacular.”
cclxxivSee Abbo-Hannan, p. 73.
cclxxvSee, for example, Cann. 579 and 1196. The conditions stipulated in these canons are to be considered “essential.”
cclxxviSee Bouscaren, p. 60.
cclxxviiCCEO c. 1521 has a slightly stylistically modified version of this canon.
cclxxviiiSee Abbo-Hannan, pp. 83-84.
cclxxixSee Beste, p. 116.
cclxxxSee Chiappetta, p. 95.
cclxxxiSee CLSA Commentary 2000, pp. 105-106.
cclxxxiiSee CCEO c. 1522, §1 for the equivalent of this Latin norm.
cclxxxiiiSee Beste, p. 117; Cappello, p. 124; Abbo-Hannan, p. 85.
cclxxxivSee Cappello, pp. 124-125; Abbo-Hannan, pp. 85-86.
cclxxxvSee Cappello, p. 125; also see Chiappetta, p. 96. In usual circumstances, indults granted by the Holy See are in forma
commissoria and their execution is committed to the diocesan bishop or local (personal) Ordinary with discretionary power. This
is done in deference to the authority of the diocesan bishop and of the Ordinary as well as for reasons of prudence because
ordinarily they are in a better position to evaluate the circumstances, to ascertain the presence of true motives for the petition and
to supervise the proper use of the indult.
cclxxxviSee Abbo-Hannan, p. 85.
cclxxxviiCCEO c. 1523 is identical.
cclxxxviiiSee Chiappetta, p. 96.
cclxxxixSee Abbo-Hannan, p. 86.
ccxcCCEO c. 1524 is identical.
ccxciSee Cappello, p. 126.
ccxciiSee Naz, p. 86.
ccxciiiSee Regatillo, p. 90.
ccxcivSee Chiappetta, pp. 97-98.
ccxcvCCEO c. 1525 is identical.
ccxcviChiappetta, p. 98.
ccxcviiSee Regatillo, p. 90.
ccxcviiiSee Abbo-Hannan, p. 88.
ccxcixSee Regatillo, p. 90; Beste, pp. 117-118.
cccSee Regatillo, p. 90.
ccciCCEO c. 1526 is identical.
ccciiSee Abbo-Hannan, p. 88.
ccciiiCCEO c. 1513, §2 has identical norm.
cccivCCEO c. 1513, §3 is identical.
cccvSee Abbo-Hannan, p. 89.
cccviIbid., pp. 89-90.
cccviiSee Chiappetta, p. 98.
cccviiiIt is important to note the difference between the Latin canon and the Eastern canon on this matter. CCEO c. 1510, the
equivalent of CIC 83 canon 48, reads: Ҥ1. Administrative acts can be placed, within the limits of their competence, by those who
have executive power of governance as well as those who have received such power explicitly by the law itself or by legitimate
delegation.
Ҥ2. Administrative acts are chiefly:
“1o decrees which give a decision or make a canonical provision for a special case;
“2o singular precepts which directly and legitimately enjoin a specific person or persons to do or omit something,
especially in order to urge the observance of the law;
“3o rescripts which grant a privilege, dispensation, permission or another favor.”

cccixSee Chiappetta, p. 99.

cccxIbid., p. 100.
cccxiSee CCEO c. 1510, §2, 2o.
cccxiiSee Abbo-Hannan, pp. 47-48; Cappello, p. 81.
cccxiiiSee Cappello, p. 80.
cccxivIbid., p. 81.
cccxvSee Chiappetta, p. 100.
cccxviWe should note here that the Oriental Code deals with the principles governing issuance of extra-judicial decrees
(administrative) in Art. I of Chapter III of Title XXIX: Law, Custom and Administrative Acts. And the very first canon on the
procedure for issuing extra-judicial decrees is canon 1517 which presents the norm of prudence. CCEO c. 1517, §1 reads: “Before
issuing an extra-judicial decree, an authority is to seek out the necessary information and proofs, hear or consult those who should
by law be heard or consulted, and also hear those whom the decree directly touches and especially those whose rights can be
injured.”
cccxviiCCEO provides two norms on the matter of this Latin canon. CCEO c. 1514 rules that an administrative act meant for
external forum and, if given in commissorial form, is to be committed to writing. And CCEO c. 1519, §2 is specific on the
necessity of committing an extra-judicial decree to writing.
cccxviiiSee Beste, p. 91; also see Abbo-Hannan, p. 49.
cccxixSee Abbo-Hannan, p. 24.
cccxxSee Comm. 14 (1982), p. 137, can. 51.
cccxxiSee Chiappetta, p. 101.
cccxxiiIbid.
cccxxiiiSee CLSA Commentary 2000, pp. 111-112.
cccxxivSee ibid.
cccxxvCCEO has no equivalent of this canon.
cccxxvi“Generi per speciem derogatur” (R.I. 34, in VIo).
cccxxvii“Qui prior est tempore prior est in iure” (R.I. 54, in VIo).
cccxxviiiSee CLSA Commentary 2000, p. 112; also see Chiappetta, p. 102..
cccxxixSee CLSA Commenrary 2000, p. 112.
cccxxxSee Chiappetta, p. 102.
cccxxxiIbid.,; also see CASA Commentary 2000, p. 113.
cccxxxiiCCEO expresses these principles in two distinct canons. CCEO c. 1511: “An administrative act has effect from the
moment it is intimated or, in the case of rescripts, at the moment the letter is given. However, if the application of the
administrative act is entrusted to an executor, it has effect at the moment of execution.
CCEO c. 1520, §1: “A decree has legal force after it has been intimated to the one to whom it is destined in the way that is safest
according to the laws and conditions of places.”
cccxxxiiiSee Chiappetta, p. 103.
cccxxxivCASA Commentary 2000, p. 113.
cccxxxvSee Abbo-Hannan, p. 49.
cccxxxviCCEO c. 1520, §2: “If the danger of public or private harm precludes the text of the decree being given in writing, the
ecclesiastical authority can order the decree to be read to the person to whom it is destined before two witnesses or a notary. After
a written record of the proceedings has been prepared, all those present must sign it. Having completed these things, the decree is
considered to have been intimated.”
cccxxxviiSee Chiappetta, p. 103.
cccxxxviiiSee Regatillo, p. 70.
cccxxxixCCEO c. 1520, §3: “However, if the person to whom the decree is destined has refused intimation, or having been
summoned according to the norm of law to receive or hear the decree, did not appear without a just cause in the estimation of the
authority of the decree, or refused to sign the written record of the proceedings, the decree is considered to have been intimated.”
cccxlThe CCEO c. 1518, the parallel of the Latin canon on this matter, reads: “The authority is to issue a decree within sixty days
from the receipt of the petition to obtain it, unless the particular law of one’s own Church sui iuris has established other time
limits. If this was not done and the petitioner asks again in writing for the decree, on the thirtieth day from the receipt of the
petition, if even by then nothing has been done, the petition is considered as rejected as if the rejection took place on that day by
decree, so that a recourse can be introduced against it.” This canon is much more detailed and specific on issues involved in this
situation.
cccxliCanons 189, §3 and 268, §l are examples of situations in which silence or inaction on superior’s part has juridic effect.
cccxliiSee CLSA Commentary 2000, pp. 114-115.
cccxliiiChiappetta, p. 104.
cccxlivCCEO c. 1513, §5: “A singular decree or precept ceases to have force through cessation of the law for whose execution it
was given; a singular precept also ceases when the authority of the one who issued it expires, unless it was imposed by a legitimate
document.”
cccxlvSee Cappello, pp. 81-82.
cccxlviIbid., p. 81.
cccxlviiCappello, p. 82. A simple example of this would be a bishop or a superior ordering a priest without a legal document to
make an eight days’ retreat for a serious reason. Right in the middle of the retreat, the bishop or the superior dies or for some
reason ceases from office. Strictly speaking, the priest does not have the legal obligation to complete the retreat. However, his
obligation in conscience of course would override the legal obligation!
cccxlviiiSee Chiappetta, p. 105.
cccxlixThis brief historical note has been adapted from Chiappetta, p. 105; Abbo-Hannan, pp. 69-70; also see Beste, p. 107;
Regatillo, p. 83.
ccclCCEO c. 1510, §2,3o: “[Administrative acts are chiefly:] [...] rescripts which grant a privilege, dispensation, permission or
another favor.
“1527, §1: The canons established for rescripts are valid also for the oral granting of favors unless it is otherwise clearly evident.”
cccliSee Abbo-Hannan, pp. 68-69.
cccliiIn a Rotal decree dated 22 June 1988, the Rotal Judge Funghini deals with the nature, distinction and cessation of rescripts in
a marriage case from Vancouver, Canada. See ME, 114 (1989), pp. 320-328.
cccliiiSee Chiappetta, p. 107; G. Michiels, Normae generales iuris canonici, Commentarium libri Codicis iuris canonici, Ed.
altera penitus retractata et notabiliter aucta, Tornaci, Desclée, 1949, Vol. 2, p. 286-287; F.X. Wernz, Ius canonicum ad Codicis
normam exactum, opera P. Petri Vidal, Normae generales, Romae, Apud Aedes Universitatis Gregorianae, 1938, p. 393.
ccclivSee Pastor bonus, art. 129, 4o; also see Chiappetta, p. 107; Cappello, p. 112.
ccclvSee Cappello, p. 112; Beste, p. 108; Bouscaren, p. 59.
ccclviS.C. Sacr., 7 May 1923, n. 102, in AAS, 15 (1927), p. 413; CLD, 1, pp. 791-792; Bouscaren, p. 59.
ccclviiSee Cappello, p. 111; Beste, p. 108; Regatillo, p. 83; Chiappetta, p. 106.
ccclviiiAccording to the mind of the Code Commission, this norm was added in order to establish the foundation of certainty of
favours granted viva voce. See Comm. 3 (1971), p. 87; Chiappetta, p. 108.
ccclixThere is no comparable canon in CCEO.
ccclxSee Regatillo, p. 84; Abbo-Hannan, pp. 70-71.
ccclxiSee Cappello, pp. 106, 112.
ccclxiiSee Abbo-Hannan, p.71.
ccclxiiiCCEO c. 1528: “A rescript can be requested for another without the person’s assent and has force before the person’s
acceptance, unless it is otherwise evident from the attached clauses.”
ccclxivSee Regatillo, p. 85.
ccclxvS.C. Rel., Reply, 1 August 1922, in CLD, 1, p. 326.
ccclxviS.C. Rel., Reply, 19 April 1951, in CLD, 4, p. 238.
ccclxviiSee CLD, 4, p. 239.
ccclxviiiSee Bouscaren, p. 60.
ccclxixSee Cappello, p. 115.
ccclxxCCEO c. 1511: “An administrative act has effect from the moment it is intimated or, in the case of rescripts, at the moment
the letter is given. However, if the application of the administrative act is entrusted to an executor, it has effect at the moment of
execution.”
ccclxxiSee Abbo-Hannan, p. 72.
ccclxxiiSee AAS, 72 (1980), pp. 1132-1137; CLD, 9, pp. 92-99.
ccclxxiiiSee William H. Woestman, The Sacraments of Orders and the Clerical State: A Commentary on the Code of Canon Law,
Second Edition, Ottawa, Faculty of Canon Law, Saint Paul University, 2001, pp. 330-331, for a sample of a rescript of
dispensation from priestly ministry.
ccclxxivCCEO c. 1529, which is parallel to the Latin Code has two paragraphs. Ҥ1. The concealment of truth in the request does
not prevent a rescript from having force, provided that those things have been expressed which must be expressed for validity
according to the style of the curia of the hierarch who granted the rescript.
Ҥ2. Nor does a statement of falsehood prevent a rescript from having force, provided that at least one proposed motivating reason
is true.” Italics added in order to highlight the difference between canon 63 of the Latin Code and the comparable Oriental canon.
ccclxxvSee Chiapetta, p. 110.
ccclxxviSee Abbo-Hannan, p. 74.
ccclxxviiSee Abbo-Hannan, pp. 74-75; Beste, p. 112.
ccclxxviiiSee Beste, p. 112.
ccclxxixS.C. Sacr., Instruction, “Dispensationis matrimonii rati,” 7 March 1972, in CLD, 7, p. 992; canon 1698 has this provision.
Congregation for the Sacraments, Circular letter, 20 December 1986, in William H. Woestman, Special Marriage Cases, Ottawa,
ON, Saint Paul University, 1990, p. 125.
ccclxxxSee Woestman, Special Marriage Cases, pp. 21-22.
ccclxxxiSee Cappello, pp. 118-119.
ccclxxxiiThere is no comparable canon in CCEO.
ccclxxxiii“When somebody is forbidden to do something one way, it should not be allowed in another way” (“Quum qui una via
prohibetur alicui, ad id alia non debet admitti,” R.I. 84, in VI o).
ccclxxxivSee AAS, 59 (1967), pp. 885-928.
ccclxxxvSee Pastor bonus, art. 14, which reads: “The competence of dicasteries is defined on the basis of subject matter, unless
otherwise expressly provided for.”
ccclxxxviAbbo-Hannan, pp. 75-76.
ccclxxxviiSee Cappello, p. 115.
ccclxxxviiiThis matter was discussed at length on 15 November 1967 by the coetus involved in the revision of canon 43 of the
1917 Code. The report on this discussion reveals that there was divergence of opinion among members of the coetus on this
matter. It appears that the assistant Secretary proposed the following norm as possible solution to the controversy: “Gratia
denegata ab aliquo Dicasterio, a S. Poenitentiaria concedi potest pro solo foro interno, sicut et gratia denegata a Poenitentiaria pro
foro interno, a Dicasteriis dari potest pro foro externo” (Comm. 17 [1985], pp. 59-60, can. 43). This formula did not resolve the
controversy as some argued that “a favour granted for the exrernal forum is valid also for the internal forum, and the S.
Penitentiary may have reasons to deny the favour (see Chiappetta, p. 112). The controversy still remains unresolved in the new
Code. The Oriental Code does not address this issue at all.
ccclxxxixSee Beste, p. 113.
cccxcCCEO has no equivalent of this canon.
cccxciSee Abbo-Hannan, p. 77.
cccxciiHere the canon does not seem to envisage the possibility of obtaining the favour or permission from the second Vicar with
the consent of the first Vicar who denied it. However, Chiappetta rightly argues that, by applying the principle of analogy to
canons 64 and 65,§2, such a concession could be possible and valid because in such a hypothesis the favour or permission is no
longer denied by the first Vicar. See Chiappetta, p. 114. The Oriental Code seems to shed some light on this question. CCEO c.
1530, §2 reads: “A favour denied by one authority cannot be validly granted by another equally competent authority or a higher
authority if no mention of the denial is made in the petition.” According to this norm, therefore, a favour or permission denied by
one Vicar of the Eparch or Hierarch can be validly granted by another Vicar of the same Eparch or Hierarch if that denial is
mentioned in the request. This norm is quite different from that of canon 65, §2 of CIC.
cccxciiiSee Chiappetta, p. 114.
cccxcivSee Naz, p. 176.
cccxcvCCEO has no equivalent of this canon.
cccxcviSee Abbo-Hannan, p. 79.
cccxcviiSee Beste, p. 114.
cccxcviiiSee Cappello, p. 122.
cccxcixSee Regatillo, p. 87. It seems the mind of the Code Commission was to consider the judgment of the Ordinary necessary
only to ascertain the authenticity of the rescript so that all doubt about it can be eliminated, and it is not tied to its validity. See
Comm. 17 (1985), p. 62, can. 47; also see Chiappetta, p. 115.
cdCCEO has no equivalent of this canon.
cdiSee Abbo-Hannan, p. 79.
cdiiIbid.
cdiiiSee Regatillo, p. 87.
cdivSee Chiappetta, p. 116.
cdvSee Regatillo, p. 87.
cdviIbid., pp. 88-89; Abbo-Hannan, p. 80.
cdviiSee Chiappetta, p. 116; Regatillo, p. 89.
cdviiiSee Abbo-Hannan, p. 80.
cdixSee ibid., p. 81; Regatillo, p. 88.
cdxSee Abbo-Hannan, p. 80.
cdxiCCEO has no equivalent of this canon.
cdxiiSee Cappello, p. 124.
cdxiiiSee Abbo-Hannan, p. 82.
cdxivCCEO has no equivalent of this canon.
cdxvSee Abbo-Hannan, p. 83.
cdxviIbid.
cdxviiCCEO c. 1522, §2 is identically the same.
cdxviiiSee Abbo-Hannan, p. 86.
cdxixCCEO has no equivalent of this canon.
cdxxCCEO has no equivalent of this canon.
cdxxiSee CLD, 6, p. 371.
cdxxiiSee CLD, 5, p. 297.
cdxxiiiSee CLD, 6, p. 371; CLD, 8, pp. 241-244.
cdxxivSee F.X. Wernz, Ius canonicum ad Codicis normam exactum, opera P. Petri Vidal, Tomus II, De personis, editio tertia,
Romae, Apud Aedes Universitatis Gregorianae, 1943, p. 436.
cdxxvCLD, 6, p. 397.
cdxxviSee CLSA Commentary 2000, p. 121.
cdxxviiSee Chiappetta, p. 118: “É necessario per altro che il rescitto sia scaduto. Non può il Vescovo diocesano prorogare un
rescritto che sia ancora valido. La proroga dei tre mesi decorre communque dal momento in cui il Vescovo la concede, non dal
giorno in cui il rescritto è scaduto.”
cdxxviiiCCEO has no equivalent of this canon.
cdxxixSee Abbo-Hannan, p. 89.
cdxxxSee Chiappetta, p. 118.
cdxxxiSee Abbo-Hannan, p. 90.
cdxxxiiSee Cappello, p. 128; Abbo-Hannan, p. 89.
cdxxxiiiCCEO c. 1527, §2: “A person is bound to prove a favor granted orally, whenever someone legitimately requests it.”
cdxxxivAbbo-Hannan, p. 109; Beste, p. 127.
cdxxxvSee Regatillo, p. 99; Beste, p. 127; Abbo-Hannan, p. 109.
cdxxxviCCEO has no equivalent of this canon. The reason for this omission is obvious in the very structure of Art. III of of
Chapter III. Art. III on Rescripts is divided into two subtitles: 1o Privileges and 2o Dispensations, and these subtitles are preceded
by four general canons on Rescripts. According to this structure, Privileges and Dispensations are clearly presented as two
subspecies of Rescripts.
cdxxxviiSee Abbo-Hannan, p. 93 for historical details related to the institute of privileges.
cdxxxviiiSee Regatillo, p. 91; Cappello, p. 128.
cdxxxixSee Chiappetta, p. 119.
cdxlAllan McCormack, The Term “Privilege”: A Textual Study of Its Meaning and Use in the 1983 Code of Canon Law, Roma,
Editrice Pontificia Università Greogoriana, 1997, p. 394.
cdxliSee Comm. 19 (1987), p. 30.
cdxliiSee Comm. 19 (1987), pp. 27-33.
cdxliiiCCEO c. 1531, Ҥ1. A privilege is a favor given through a special act to the benefit of certain physical or juridic persons; it
can be granted by the legislator and by the one to whom the legislator has granted this power.
“§2. Centenary or immemorial possession induces the presumption that a privilege has been granted.” It is noteworthy that the
first paragraph of this canon says, “[...] or by the one to whom the legislator has granted this power.” This formula renders the
principle more open because, if the legislator is permitted to delegate the power to grant privileges, he could do so in respect to
any person, and not necessarily restricted to those who possess executive power. For example, a chancellor, who does not possess
executive power, can be delegated to grant privileges if the diocesan bishop so decides
cdxlivSee Chiappetta, p. 122.
cdxlvSee Comm. 3 (1971), pp. 88-89. Also see Comm. 19 (1987), pp. 30-33. Chiappetta, pp. 121-122, footnote 2.
cdxlviSee Chiappetta, p. 120.
cdxlviiSee McCormack, pp. 385-387.
cdxlviiiMcCormack says that “Once the delegation of jurisdiction was separated from the terminology of privilege, the notion of a
praeter legam privilege no longer had any meaning.” See McCormack, p. 386, footnote 28.
cdxlixSee CLD, 8, pp. 517-519. Here the Congregation for the Doctrine of the Faith explains some doctrinal and canonical
aspects of the use of unfermented grape juice by alcoholic priests.
cdlSee Chiappetta, p. 121.
cdliSee McCormack, pp. 377-379.
cdliiSee Chiappetta, p. 121, footnote 1.
cdliiiSee ibid., p.121
cdlivSee Abbo-Hannan, p. 95.
cdlvSee Regatillo, p. 95; Chiappetta, p. 122.
cdlviCCEO c. 1512, §3: “In the case of privileges, that interpretation must always be used so that the person to whom the privilege
was granted actually does obtain some favor.”
cdlvii“Quod alicui gratiose conceditur, trahi non debet ab aliis in exemplum” (R.I. 74, in VIo).
cdlviii“Odiosa restringi, et favores convenit ampliari” (R.I. 15, in VIo).
cdlixSee Abbo-Hannan, pp. 98-99.
cdlxSee McCormack, pp. 349-352, 387.
cdlxiCCEO c. 1532, “§1. A privilege is presumed to be perpetual.”
1532, Ҥ2. A privilege ceases: 1o if it is personal, through the death of the person to whom it was granted.
“2o if it is real or local, through complete destruction of the thing or place.

cdlxii“Decet concesum a principe beneficium esse mansurum” (R.I. 16, in VI o).

cdlxiiiSee Abbo-Hannan, p. 105.
cdlxivSee Regatillo, p. 98.
cdlxvSee Abbo-Hannan, pp. 105-106.
cdlxviCCEO has no canon equivalent of this norm here.
cdlxviiCCEO c. 1533 is literally identical.
cdlxviiiCCEO has no equivalent of this canon.
cdlxixSee Chiappetta, pp. 125-126; also see Abbo-Hannan, p. 104
cdlxxSee Chiappetta, p. 126, footnote 3.
cdlxxiCCEO c. 1534: “A privilege which is not burdensome to others does not cease through non-use or contrary use. If it is to
the disadvantage of others, however, it is lost if legitimate prescription or tacit renunciation takes place.”
cdlxxiiSee Abbo-Hannan, p. 106; Beste, p. 124.
cdlxxiiiSee Regatillo, p. 98; Beste, p. 124; Abbo-Hannan, p. 106.
cdlxxivSee Abbo-Hannan, p. 106.
cdlxxvSee ibid., p. 107; Regatillo, p. 98.
cdlxxviFor a discussion of this point, see McCormack, pp. 333-338.
cdlxxviiSee Abbo-Hannan, p. 107; Beste, pp. 124-125.
cdlxxviiiSee Chiappetta, p. 126, footnote 4.
cdlxxixCCEO c. 1532, §2, 3o and 4o is identical.
cdlxxxSee Chiappetta, p. 126.
cdlxxxiSee ibid.
cdlxxxiiSee Abbo-Hannan, p. 108.
cdlxxxiiiSee Cappello, p. 141; Beste, p. 125; Chiappetta, p. 127.
cdlxxxivSee Abbo-Hannan, p. 107; also see Chiappetta, p. 127.
cdlxxxvChiappetta, p. 127.
cdlxxxviCCEO c. 1535 is identical excepting the use of “hierarch” instead of “ordinary” and “higher authority” instead of
“Apostolic See.” This is in conformity with the nature of authority in the Eastern Churches.
cdlxxxviiSee Chiappetta, p. 127.
cdlxxxviiiSee Abbo-Hannan, p. 108.
cdlxxxixSee Beste, p. 127; Regatillo, p. 99.
cdxcSee Chiappetta, p. 127.
cdxciSee CLSA Commentary 2000, p. 126.
cdxciiSee Abbo-Hannan, p. 112; Regatillo, p. 100.
cdxciiiConc. Trid. Sess. XXV, c. 18 de ref.: “Publice expedit legis vinculum quandoque relaxare, ut plenius evenientibus casibus
et necessitatibus pro communi utilitate satisfaciat.”
cdxcivAs reported by J.P. McIntyre in CLSA Commentary 2000, p. 126.
cdxcvSee ibid., pp. 126-127.
cdxcviCCEO c. 1536, §1. “A dispensation, that is, the relaxation of a merely ecclesiastical law in a special case [in casu speciali],
can be granted only for a just and reasonable cause, after taking into account the circumstances of the case and the gravity of the
law from which dispensation is given; otherwise the dispensation is illicit and, unless it is given by the legislator himself or by a
higher authority, it is also invalid.
Ҥ2. The spiritual good of the Christian faithful is a just and reasonable cause.

cdxcviiSee Chiappetta, p. 129.

cdxcviiiSee Urrutia, p. 52.
cdxcixSee Abbo-Hannan, p. 111; Regatillo, p. 100; Chiappetta, p. 130.
dSee Regatillo, p. 100; Cappello, p. 97; Abbo-Hannan, pp. 111-112.
diSee Comm. 3 (1971), pp. 89-90.
diiSee Chiappetta, p. 130.
diiiCCEO c. 1537: “Laws are not subject to dispensation to the extent that they determine those things which are essentially
constitutive of juridic institutes or acts; nor are procedural and penal laws subject to dispensation.” In fact, n. IV of motu proprio
De Episcoporum muneribus (for the Latin bishops) and n. III of mot proprio Episcopacies potentates (for Eastern rite bishops) had
excluded procedural and penal laws from the dispensing powers of the bishops because, as both MP said, they are established for
the defense of rights and dispensation from them does not concern the spiritual good of the faithful. In the new Code, the non-
dispensability of procedural and penal laws is affirmed in canon 87 where the text has given rise to some difference of opinion
among authors some claiming the possibility of dispensing from them in urgent situations. The Eastern Code seems to confirm
the opinion that procedural and penal laws are not subject to dispensation any time. Just and full protection of rights of persons
cannot be achieved if laws meant to protect them are dispensed with.
divAAS, 58 (1966), p. 469: “Ad normam can. 80, dispensatio intellegitur relaxatio legis in casu speciali. Facultas autem
dispensandi exercetur circa leges precipientes vel prohibentes, non autem circa leges constitutivas.” English translation in CLD 6,
p. 396. The statement is restated in n. III of motu proprio Episcopalis potestatis; see CLD, 6, p. 27. For a recent article on the
notion of constitutive law, see J.M. Huels, “Constitutive Law and Juridic Institutes,” in Ius Ecclesiae, 16 (2004), pp. 711-739.
dvSee Urrutia, p. 53.
dviSee Chiappetta, pp. 130-131.
dviiCCEO c. 1538, Ҥ1. An eparchial bishop, whenever he judges that it contributes to their spiritual good, is able to dispense in
special cases the Christian faithful, over whom he exercises power according to the norm of law, from laws of the common law
and laws of the particular law of his own Church sui iuris, unless a reservation has been made by the authority which issued the
laws.
Ҥ2. If it is difficult to approach the authority to which the dispensation has been reserved and, at the same time, there is danger of
grave harm in delay, every hierarch is able to dispense in special cases the Christian faithful over whom he exercises power
according to the norm of law, provided that it concerns a dispensation which that authority grants under the same circumstances,
with due regard for can. 396.” It is not too difficult to identify the differences between CIC and CCEO on this matter.
dviiiSee AAS, 59 (1967), pp. 385-390; CLD, 6, pp. 25-29.
dixSee Chiappetta, p. 132.
dxTwo responses from The Pontifical Council for the Interpretation of Legal Texts promulgated since coming into effect of the
new Code are relevant to this discussion on reserved dispensations. To a question whether outside the case of danger of death the
diocesan bishop can dispense according to canon 87,§1 from the canonical form for marriage between two Catholics, the Council
replied on 1 August 1985 in the Negative. See AAS, 77 (1985), p. 771; Comm. 17 (1985), p. 262. Again, when asked if the
diocesan bishop is able to dispense from the prescript of canon 767,§1 by which the homily is reserved to priests and deacons, the
response of 3 September 1987 was Negative. See AAS, 79 (1987), p. 1249; Comm. 19 (1987), p. 261; L’Osservatore romano, 20
September 1987, p. 2. In both these cases the dispensation is reserved to the Apostolic See.
dxiSee Comm. 5 (1973), p. 222, n. 3, c; 12 (1980), p. 302, can. 246; 18 (1986), p. 148, 3 o; see also Chiappetta, p. 133.
dxiiCCEO c. 1538, §2 reads: “If recourse to the authority to which the dispensation is reserved is difficult, and at the same time
there is a danger of serious harm in delay, any hierarch in a special case can dispense the Christian faithful upon whom he
exercises his power according to the norm of law, provided that it concerns a dispensation which the same authority is used to
grant under the same circumstances, with due regard for can. 396.” Canon 396 mentioned here corresponds to canon 291 of CIC.
dxiiiPontifical Commission for the Authentic Interpretation of the Code, Response, 12 November 1922, in AAS, 14 (1922), p. 662;
CLD, 1, p. 502.
dxivSee Abbo-Hannan, p. 115; Urrutia, p. 54; Chiappetta, p. 133.
dxvSee Urrutia, p. 54.
dxviSee ibid., p. 55.
dxviiSee Chiappetta, p. 133.
dxviiiThere is no equivalent of this canon in CCEO.
dxixSee Comm. 19 (1987), pp. 84-85, can. 2 for a discussion on this issue during the formulation of canon 479.
dxxSee Abbo-Hannan, p. 115.
dxxiSee Urrutia, p. 55.
dxxiiThere is no equivalent of this canon in CCEO.
dxxiiiSee Chiappetta, p. 134.
dxxivThe question of delegation of dispensing power to lay persons was discussed at length by the coetus during the session of
January 1969. For details, see Comm. 19 (1987), pp. 79 and 88-90.
dxxvCCEO c. 1536, §1 contains the norm on the requirement of a just cause for dispensation.
dxxviSt. Thomas, in his Summa theol. I-II, q. 97, a. 4 says: “One who is charged with the governance of the people, and who gives
permission not to observe the law solely out of capriciousness, will be unfaithful in the case where he will not have heeded the
common good; imprudent in the case when he will have ignored the motive for dispensing.”
dxxviiSee Comm. 19 (1987), p. 82, n. 5.
dxxviiiSee Chiappetta, p. 135.
dxxixSee Beste, p. 130-131.
dxxxSee Chiappeta, p. 135.
dxxxiThe issue of doubt concerning the existence of the cause for dispensation was discussed by the coetus. One member of the
group had in fact suggested that the doubt concerning the existence of the cause is to be reduced to the doubt concerning the
sufficiency of the cause. A proposal was made to the effect that doubt concerning existence of the cause be mentioned in the
canon. But this proposal was rejected by a vote of 6 to 5. See Comm. 19 (1987), pp. 82-83, can. 84, §2).
dxxxiiSee Cappello, p. 105; Chiappetta, p. 135.
dxxxiiiSee Chiappetta, p. 136.
dxxxivIbid., p. 135.
dxxxvSee Cappello, p. 106; Chiappetta, p. 136.
dxxxviCCEO c. 1539: “Even when outside his territory, one who has the power to dispense is able to exercise it with respect to his
subjects even though they are absent from the territory and, unless the contrary is expressly established, also with respect to
travelers actually present in the territory, and with respect to himself as well.” This canon is identical to the Latin canon.
dxxxviiSee Comm. 3 (1971), p. 91, 3o.
dxxxviiiSee Regatillo, pp. 102-103; Cappello, p. 103.
dxxxixSee Abbo-Hannan, pp. 116-117.
dxlIbid., p. 116; Cappello, p. 102; Chiappetta, p. 136.
dxliSee Chiappetta, p. 136.
dxliiCCEO c. 1512, §4: “Not only a dispensation, but also the very power to dispense granted for a particular case, is subject to a
strict interpretation.”
dxliiiSee Chiappetta, p. 137.
dxlivSee Abbo-Hannan, p. 118; Cappello, p. 107.
dxlvSee Beste, p. 132; Cappello, p. 107.
dxlviCCEO c. 1513, §4: “A dispensation which has successive application ceases also by the certain and total cessation of the
motivating cause.”
dxlviiSee Cappello, p. 108; Chiappetta, p. 137.
dxlviiiSee Cappello, p. 108; Abbo-Hannan, p. 119.
dxlixSee Abbo-Hannan, p. 119; Cappello, p. 108.
dlSee Cappello, p. 108.
dliThese norms are taken from Chiappetta, pp. 137-138; also see CLSA Commentary 2000, pp. 135-136 for a current list on
dispensations.
dliiSee Comm. 9 (1977), p. 234.
dliiiSee Urrutia, p. 58.
dlivSee Comm. 3 (1971), p. 93, n. 6a; also see Chiappetta, p. 139.
dlvSee Chiappetta, p. 139.
dlviSee CLSA Commentary 2000, p. 138.
dlviiSee Chiappetta, p. 140.
dlviiiSee ibid.
dlixFor a comprehensive list of references to statutes mentioned in the new Code, see ibid., pp. 140-141.
dlxThese examples are cited from Chiappetta, pp. 141-142.
dlxiSee AAS, 54 (1962), pp. 609-611.
dlxiiSee X. Ochoa, Leges Ecclesiae post Codicem iuris canonici editae, vol. III, Roma, Commentarium pro Religiosis, 1972, n.
3127, coll. 4378-4397.
dlxiiiSee AAS, 59 (1967), pp. 91-103.
dlxivSee AAS, 57 (1965), pp. 775-780.
dlxvSee AAS, 61 (1969), pp. 525-539.
dlxviSee AAS, 63 (1971), pp. 702-704.
dlxviiSee Chiappetta, p. 142.