PRIVILEGE. – A juridical norm contained in the law or issued by a superior for the benefit of a category or a person. From the sources of Roman law it appears that the privilegium generally consisted of a ius singulare proper to certain classes of persons, while dispensations from the observance of some law or exceptions contemplated in it for individual physical or moral persons were termed personales constitutiones or privata privilegia (D. 1, 4, 1 § 2). This distinction was not subsequently maintained by 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, criticised by modern authors (cf. I. D’Annibale, Summula Theol. mor., I, Rome 1908, n. 218 n. 3 and n. 1), though constituting a methodological error, is nevertheless explicable by the intimate relation and great similarity between the two institutions. The same CIC, in title V of the first book, did not depart from the old terminology, and before it there were no lack of examples in canon law of privata privilegia granted by law (cf. Conc. Trident., sess. XXV, c. 11 de reg. de exemptione monasterii Cluniacensis).
Apart from any other historical consideration, it can today be affirmed that in the CIC the term p. has a twofold meaning. In a generic sense, those norms (leges singulares) of common law by which special prerogatives are attributed to certain offices, persons, things or places are called p.: such are the p. of clerics (v.), of religious (can. 642 seq.), the p. of local exemption contemplated in can. 1492 and the Pauline privilege fixed in can. 1120. In a stricter and proper sense, however, p. is the norm by which a favour is granted praeter or contra ius (a private favourable law). From the fact that it is granted as a law (ad instar legis), the p. must be considered perpetual (can. 70), unlike a dispensation which is always temporary.
I. VARIOUS KINDS OF PRIVILEGE
P. are divided into contra or praeter ius; into affirmative or negative according as they grant the faculty of doing or omitting something; into favourable or odious according as they grant or do not grant favours without informing or giving reasons; into gracious, remunerative, conventional or onerous, according as they are granted by the liberality of the superior, out of gratitude or under an onerous contract; into personal or real according as they are proper to persons or to things; and into those granted by the CIC or by special concessions. In the CIC, faculties for granting graces, whether for the internal or external forum, in perpetuity or for a determined time, or for a determined number of cases, are equated with p. praeter (can. 66 § 1; V. QUINQUENNIAL FACULTIES). The granting of a p. is connected with power; hence every legislator can grant p. by virtue and within the limits of the power with which he is invested (can. 63 § 1); only the supreme authority, however, can grant p. contra or praeter ius.P. can be acquired: 1) by direct concession, which is generally made in writing; if made viva voce, the p. so granted cannot be upheld in the external forum (can. 79); 2) by communication, by virtue of which a p. granted to one person can be extended to a third. There are two forms of this mode of concession: by communication in aequa principalis form and in accessory form. Both the p. of the original grantee and that of the person who has received it by communication are identical; but whereas in the first case there is complete autonomy between the p. obtained directly and that communicated, in the second case there is an interdependence between them, so that one follows the fate of the other (can. 65). Concession by communication—in either form—is not presumed, but it must be established that it actually took place for the original grantee in a direct and perpetual manner and without any special relation to determined places, things or persons (can. 64). The granting of a p. by communication depends solely on the will of the superior who can grant p. Before the CIC, the mendicant orders communicated their p. to one another; in the new legislation this has been forbidden for any religious institute (can. 613 § 1); 2) by custom or prescription: the centenary or immemorial possession of a p. gives rise to a presumption of its concession (can. 63 § 2).
Unlike a law, a p. does not require promulgation; acceptance is, however, necessary, since no one is forced to accept a benefit (beneficium non datur invito beneficiario). A p. is to be interpreted according to the tenor of its concession, without either extensive or restrictive interpretations (can. 67). In case of doubt, if it is a question of a p. contra legem or prejudicial to the rights of others, it must be interpreted strictly; if, on the other hand, it is a p. praeter ius, granting exclusively a favour, it may be interpreted broadly. In any case, the interpretation must never be such as to render the p. useless or burdensome (can. 68). With regard to the use of a p., no one is bound to make use of it, unless, for extrinsic reasons, the obligation arises to profit by the favour granted by p. (can. 69).
II. CESSATION OF PRIVILEGE
Although a p. must be considered perpetual (can. 70), it can nevertheless cease for the following causes: 1) by revocation, which, to be effective, must be intimated to the grantee (can. 70 § 1); it must proceed from a just cause, and, if the p. was granted under a bilateral contract, it is necessary that it proceed from a cause of public good and that compensation be given if the contract was onerous. 2) By renunciation on the part of the grantee accepted by the competent authority. Acceptance already exists implicitly for all p. granted to private persons as simple favours (can. 72 § 2); it must, however, be explicit for p. granted to places or to dignities, in view of the public interest which demands the conservation of a public favour, which cannot cease through private agreements (cf. c. 12, X, II, 2). For the same reason, no community can renounce a p. if this involves damage to the Church or to third parties; in the case, however, that the p. is exclusively for the utility of the community, this, by a collegial act, can renounce it (can. 72 § 3-4). 3) Temporal p. or those granted for a determined number of cases cease on the expiry of the time or with the reaching of the number of cases for which they were granted. 4) If the p. is personal, it ceases with the death of the grantee (can. 74); the same applies to a moral person, which, however, is extinguished only by suppression intimated by the legitimate authority or if it has ceased to exist for a hundred years (can. 102); if the moral person revives, the p. of which it enjoyed also revive. 5) Real p. cease with the destruction of the thing or place to which they were attached by the concession; the places, however, revive if within fifty years the place has been rebuilt (can. 75). 6) An onerous p. to third parties can cease by prescription or by tacit renunciation on the part of the grantee, when the latter, freely and knowingly, and before the occasion to use it arises, in fact does not use it for a determined time or makes a contrary use of it (can. 76). 7) If the conditions and purposes for which it was granted have so changed, in the judgment of the superior, as to render the illicit use of the p. harmful, the p. ceases, temporarily or perpetually according as the new circumstances are temporary or permanent (can. 77). 8) The cessation of the granting power does not cause the cessation of the p., unless it was granted with the clause ad beneplacitum nostrum or an equivalent one (can. 73).The abuse in the exercise of a p. does not directly produce the cessation of the p. itself, but can be a cause of revocation; and it is the duty of Ordinaries to warn the Holy See of abuses in the exercise of p. granted by it (can. 78).