PRIVILEGIO. – A legal norm contained in a law or issued by a superior to the advantage of a category or a person. The sources of Roman law show that the privilegium generally consisted in a ius singulare proper to certain classes of persons, whereas exemptions from observing some law, or exceptions contemplated therein for individual physical or juridical persons, were called personales constitutiones or privata privilegia (D. 1, 4, 1 § 2). This distinction was not subsequently preserved 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, Roma 1908, n. 218 n. 3 e n. 1), although constituting an error of method, is nevertheless explicable by the close relationship and great similarity between the two institutions. The CIC itself, in Title V of Book I, did not free itself from the old terminology; and even before it there were examples in canon legislation of privilegia privata granted by law (cf. Conc. Trident., sess. XXV, c. 11 de reg. de exemptione monasterii Cluniacensis).
Apart from every other historical consideration, it can be affirmed that today in the CIC the term p. has a twofold meaning. In a generic sense, p. refers to those norms (leges singulares) of common law by which special prerogatives are attributed to particular offices, persons, things, or places: such are the p. clerics (v.), of religious (can. 613 seg.), the p. of local exemption contemplated in can. 1492, and the Pauline p. established in can. 1120. In a stricter and proper sense, on the other hand, p. is the norm by which a favor praeter or contra ius is granted (a favorable private law). Since it is granted as law (ad instar legis), the p. must be regarded as perpetual (can. 70), unlike a dispensation, which is always temporary.
I. VARIOUS KINDS OF P
P. are divided into contra or praeter ius; into affirmative or negative, according as they grant the faculty to do something or to omit it; into favorable or odious, according as they grant or do not grant favors without inconvenience to third parties; into gratuitous, remunerative, conventional, or onerous, according as they are granted out of the superior’s generosity, in gratitude, or pursuant to an onerous contract; into personal or real, if they pertain to persons or to things; and into p. granted by the CIC or by special concessions. In the CIC, the faculties to grant favors are equated with p. praeter ius, whether for the internal forum or the external forum, in perpetuity or for a determinate period, or for a determinate number of cases (can. 66 § 1; V. QUINQUENNALI FACOLTÀ). The granting of a p. is linked to authority; therefore, every legislator may grant p. by virtue of and within the limits of the power with which he is invested (can. 63 § 1); contra or praeterius commune, only one who possesses supreme authority may grant p.
P. may be acquired: 1) by direct concession, which is generally made in writing; if it is made orally, the p. thus granted cannot be upheld in the external forum (can. 70); 2) by communication, by virtue of which a p. granted to one person may be extended to a third party. This mode of concession has two forms: communication in forma aeque principali and in forma accessoria. The p. of the first privileged person and that of the person who received it by communication are identical; but whereas in the first case there is complete autonomy between the p. obtained directly and the one communicated, in the second there is instead an interdependence between them, whereby one follows the fortunes of the other (can. 65). Concession by communication—in both forms—is not presumed, but it must be established that it actually occurred for the first privileged person in a direct and perpetual manner and without any special relation to determinate places, things, or persons (can. 64). The granting of a p. by communication depends solely on the will of the superior who is able to grant p. Before the CIC, the mendicant religious Orders communicated their p. to one another; under the new legislation, this has been forbidden for every religious institute (can. 613 § 1); 3) by custom or prescription: century-long or immemorial possession of a p. constitutes presumptive evidence of its concession (can. 63 § 2).
A p., unlike a law, does not require promulgation; it does, however, require acceptance, since invitum beneficium non datur. A p. must be interpreted according to the tenor of the concession, without either extensive or restrictive interpretations (can. 67). In case of doubt, if it concerns a p. contra legem or one adverse to the rights of third parties, it must be interpreted strictly; if, on the other hand, it concerns a p. praeter ius, granting exclusively a favor, it may be interpreted broadly. In no case, however, may the interpretation be such as to render the p. useless or burdensome (can. 68). As regards the use of a p., no one is compelled to use it, unless, for extrinsic reasons, an obligation arises to take advantage of the favor granted by the p. (can. 69).
II. CESSATION OF THE P
Although the p. is to be regarded as perpetual (can. 70), nevertheless it may cease for the following reasons: 1) by revocation, which, in order to be effective, must be communicated to the privileged party (60 § 1), must proceed from a just cause, and, if the p. was granted by virtue of a bilateral contract, it is necessary that action 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 already exists implicitly for all p. granted to private persons as simple favors (can. 72 § 2); it must, however, be explicit for p. granted to places or 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; but if the p. is exclusively beneficial to the community, the latter may renounce it by a collegiate act (can. 72 §§ 3-4). 3) Temporary p., or those granted for a determinate number of cases, cease upon the expiration of the period or when the number of cases for which they were granted has been reached. 4) If the p. is personal, it ceases with the death of the privileged party (can. 74); the same is to be said of a juridical person, which, however, is extinguished only through suppression communicated by the legitimate authority or if it has ceased to exist for one hundred years (can. 102); when the juridical person comes back to life, the p. enjoyed by it also revive. 5) Real p. cease with the destruction of the thing or place to which they were attached by the grant; those attached to places, however, come back to life if the place has been rebuilt within 50 years (can. 75). 6) An onerous p. granted to third parties may cease through prescription or through the tacit renunciation of the privileged party, when the latter, freely and knowingly, having had the opportunity to use it, has in fact failed to use it for a determinate period or has used it in a contrary manner (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, it ceases, temporarily or perpetually according to whether or not the newly arisen circumstances are perpetual. 8) The cessation of the granting authority does not cause the p. to cease, unless it was granted with the clause ad beneplustum nostrum or with another equivalent clause (can. 73).Abuse in the exercise of the p. does not directly cause the p. itself to cease, but it may be a cause for revocation; and it is the duty of the Ordinaries to inform the Holy See of abuses in the exercise of p. granted by it (can. 78).