Privilege

PRIVILEGE. - A juridical norm contained in the law or issued by a superior for the benefit of a category or of a person. From the sources of Roman law it emerges that the privilegium generally consisted in a ius singulare proper to certain classes of persons, whereas dispensations from the observance of some law, or the exceptions contemplated in it for individual natural or juridical persons, were called personales constitutiones or privata privilegia (D. 1, 4, 1 § 2). This distinction was not preserved thereafter by the canonists, who used the term p. both to indicate the privilegia communia, introduced by law, and to signify the privilegia privata, granted by particular rescript.

The confusion of terminology, criticized by modern authors (cf. I. D'Annibale, Summula Theol. mor., I, Rome 1908, n. 218 n. 3 and n. 1), although it constitutes an error of method, is nonetheless explicable because of the intimate relation and the great similarity that exists between the two institutions. The CIC itself, in title V of book I, did not depart from the old terminology, and before it there was no lack of examples in canon law of privilegia privata bestowed by law (cf. Conc. Trident., sess. XXV, c. 11 de reg. de exemptione monasterii Cluniacensis).

Apart from any other historical consideration, it can be affirmed today that in the CIC the term p. has a twofold meaning. In a generic sense, those norms (leges singulares) of common law are called p. by which special prerogatives are attributed to determined offices, persons, things or places: such are the p. of clerics (v.), of religious (can. 613 ff.), the p. of local exemption contemplated in can. 1492 and the Pauline one fixed in can. 1120. In a stricter and proper sense, on the other hand, p. is the norm by which a favor is granted praeter or contra ius (a private favorable law). From the fact that it is granted as a law (ad instar legis), the p. must be considered perpetual (can. 70), unlike the dispensation, which is always temporary.

I. VARIOUS KINDS OF PRIVILEGE

Privileges are divided into contra ius or praeter ius; into affirmative or negative, according as they grant the faculty of doing a thing or of omitting it; into favorable or odious, according as they grant favors or not without inconvenience to third parties; into gratuitous, remunerative, conventional or onerous, according as they are given out of the superior's liberality, out of gratitude, or under an onerous contract; into personal or real, if they belong to persons or to things; into privileges granted by the CIC or by special concessions. To privileges praeter ius the CIC equates the faculties of dispensing graces, whether for the internal forum or for the external forum, in perpetuity or for a determined time, or for a determined number of cases (can. 66 § 1; v. QUINQUENNALI FACOLTÀ). The concession of a privilege is bound to power; therefore every legislator can grant privileges by virtue of and within the limits of the power with which he is invested (can. 63 § 1); contra or praeter the common law only he who has supreme power can grant a privilege.

Privileges can be acquired: 1) by direct concession, which is generally made in writing; if it is made orally, the privilege thus granted cannot be upheld in the external forum (can. 70); 2) by communication, by virtue of which a privilege granted to one person can be extended to a third party. Of this mode of concession there are two forms: by communication in forma aeque principali and in forma accessoria. Both the privilege of the first privileged person and that of the one who has received it by communication are identical; but whereas in the first case there is complete autonomy between the privilege obtained directly and the one communicated, in the second case there exists instead an interdependence between them, so that the one follows the fortunes of the other (can. 65). Concession by communication - in the two forms - is not presumed, but it must be established that it really took place for the first privileged person in a direct and perpetual manner and without any special relation to determined places, things or persons (can. 64). The bestowal of a privilege by communication depends solely on the will of the superior, who can grant privileges. Before the CIC the regular mendicant Orders communicated privileges among themselves; in the new legislation this has been forbidden for any religious order (can. 613 § 1); 3) By custom or prescription: centenary or immemorial possession of a privilege gives rise to the presumption that it was granted (can. 63 § 2).

A privilege, unlike a law, does not require promulgation; it does, however, require acceptance, inasmuch as invito beneficium non datur. A privilege must be interpreted according to the tenor of the concession, without either extensive or restrictive interpretations (can. 67). In case of doubt, if it is a privilege contra legem or against the right of third parties it must be interpreted strictly; if, on the other hand, it is a privilege praeter ius, granting exclusively a favor, it can be interpreted in a broad sense. In any case the interpretation must never be such as to render the privilege useless or burdensome (can. 68). As regards the use of a privilege, no one is compelled to use it, unless, for extrinsic reasons, the obligation arises to turn to profit the favor granted by the privilege (can. 69).

II. CESSATION OF THE PRIVILEGE

Although a p. must be considered perpetual (can. 70), it can nevertheless cease for the following causes: 1) by revocation, which, in order to be effective, must be intimated to the privileged party (60 § 1), must proceed from a just cause and, if the p. was granted by bilateral contract, it is necessary that proceedings be taken for the sake of the public good and that compensation be given if the contract was onerous. 2) By renunciation on the part of the privileged party accepted by the competent authority. Acceptance is already implicit for all p. bestowed on private persons as simple favors (can. 72 § 2); it must, however, be explicit for p. granted to places or to dignities, given the public interest that demands the preservation of a public favor, which cannot cease through private agreements (cf. c. 12, X, II, 2). For the same reason no community may renounce a p., if this entails harm to the Church or to third parties; in the case, however, where the p. is exclusively of utility to the community, the latter, by collegial act, may renounce it (can. 72 §§ 3-4). 3) Temporary p. or those granted for a determined number of cases cease upon the expiration of the time or upon reaching the number of cases for which they were granted. 4) If the p. is personal, it ceases with the death of the privileged party (can. 74); the same is to be said for a moral person, which, however, is extinguished only by suppression intimated by the legitimate authority or if for a hundred years it has ceased to exist (can. 102); when the moral person comes back to life, the p. which it enjoyed also revive. 5) Real p. cease with the destruction of the thing or place to which they were bound by the grant; the premises, however, come back to life if within 50 years the rebuilding of the place has occurred (can. 75). 6) A p. onerous to third parties can cease through prescription or through the tacit renunciation of the privileged party, when the latter, freely and knowingly and having had occasion to use it, has in fact not used it for a determined time or has made a contrary use of it (can. 76). 7) If the conditions and purposes for which the p. was granted have changed so greatly, in the judgment of the superior, as to render the use of the p. harmful or illicit, its cessation occurs, temporary or perpetual depending on the perpetuity or otherwise of the new circumstances that have arisen (can. 77). 8) With the cessation of the granting power the p. does not cease, unless it was granted with the clause ad beneplacitum nostrum or with another equivalent (can. 73).

Abuse in the exercise of the p. does not directly produce the cessation of the p. itself, but can be a cause of revocation; and it is the task of Ordinaries to inform the Holy See of abuses in the exercise of the p. granted by it (can. 78).

Vincenzo Fagiolo