Dispensation

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A dispensation ( female in canon law and in Austrian German ; male in Germany; from church Latin dispensa “granting a favor”) is a sovereign exemption or exemption from a prohibition or command .

Derivation, gender and use

The term comes from canon law and is used there feminine ( the dispensation). It is based on church Latin dispensa in the meaning of “issuing a duty”, originated from the Latin dispensare (“distributing to weigh”) from pensare (“to weigh”) through Middle High German dispensing . It is an ecclesiastical acronym for 'dispensation' (in the 14th century dispensacie ), Latin dispensatio (for the verb dispensare "to allocate, measure, evenly distribute"); Italian (la) dispensa and French (la) dispense are formed analogously .

Initially in Northern and Central German, the term has appeared in secular legal language since the 19th century, especially in administrative and building law, under the influence of " consensus " (Latin consensus "agreement") in masculine use ( the dispensation) and has been valid since then in the German Empire and in the Federal Republic of Germany, while in Austria it is used in a feminine way in secular law as well as generally in church law. The use as masculine appears as an incorrect use of the term by the profane lawyers from the church lawyers, limited to parts of the German-speaking area, favored by the fact that the German word “dispens” does not morphologically indicate the female gender.

In recent times the term seems to be increasingly shunned in secular legal language. Building regulations that are occasionally referred to no longer contain it. It still occurs occasionally in case law.

State administrative law

In German administrative law , the dispensation represents an exceptional permit or exemption, which is intended to compensate for the rigors of legal regulations that were not intended for the specific case. Formally and materially, it is a favorable administrative act that repeals a repressive legal prohibition. Dispensation is to be distinguished from the control permit, which is granted on the basis of a permit reservation already provided for in the law.

The legal term dispensation was used in some state building codes and referred to there the building applicants under certain conditions to be granted exemption from building law specifications or requirements.

Canon Law

In canon law , a dispensation is the exemption from a purely ecclesiastical law, that is, a canonical regulation in justified individual cases that cannot be traced back to divine law . This can be given on request, the so-called petition , by the local bishop or the officials commissioned by him (cf. Codex Iuris Canonici (CIC) cc. 85-93). For some ecclesiastical laws, the power to dispense is reserved for the apostolic see; Members of the order can also be granted certain dispensations by the superior of the order.

A dispensation can only be granted if there is a reasonable and just reason in the individual case. If this reason does not apply, a dispensation that has already been issued will lose its effectiveness.

Dispensations are of great importance in the marriage law of the Catholic Church :

  • A dispensation can be used to exempt the Catholic spouse from adhering to the Catholic-Church marriage form, especially if the other spouse cannot be induced to marry in church.
  • For example, exemption from an impediment to marriage can be granted by the episcopal church authority, the official office , in order, for example, to enable marriage between distant blood relatives or partners of different denominations or religions. Any old records of a marriage dispensation can be a valuable source of genealogy .

Systematically, the dispensation within the administrative acts for individual cases, together with the privilege, is one of the indults to which there is basically no legal claim. It is usually granted by means of a rescript .

Church administrative acts according to CIC.svg

literature

See also

Individual evidence

  1. ↑ a b Ursula Hermann (Hrsg.): Knaur's dictionary of origin. Etymology and history of 10,000 interesting words. Lexicographical Institute, Droemer Knaur , Munich 1982, p. 118.
  2. ^ Friedrich Kluge , Alfred Götze : Etymological dictionary of the German language . 20th edition, ed. by Walther Mitzka , De Gruyter, Berlin / New York 1967; Reprint (“21st unchanged edition”) ibid 1975, ISBN 3-11-005709-3 , p. 134 f.
  3. ↑ The Duden (Volume 5, foreign words , 5th revised edition, Leipzig 1990, p 191) derivation specified ( " lat.- mlat. ;, Remission '"; similar in online edition 2019 ) is by to add the note that dispensa (Middle) Latin primarily means "livelihood, pantry, (food) distribution point".
  4. ↑ Italian dispensa primarily continues (like Spanish despensa , "pantry") the Middle Latin term dispensa with its main meanings. The meaning of “dispensation” is only secondary here.
  5. ^ Friedrich Kluge, Alfred Götze: Etymological dictionary of the German language. 1967, p. 134.
  6. ↑ So already with Jacob and Wilhelm Grimm, German Dictionary, Volume 2, Leipzig 1860; in Duden since the first edition in 1880.
  7. ↑ OLG Frankfurt am Main , judgment of February 26, 2013, Az. 25 U 162/12, full text , Rn. 21st
  8. ↑ E.g. § 63 Hessian Building Regulations .
  9. ↑ Georg Bier : Introduction to Canon Law. In: Clauß Peter Sajak : Practical Theology. Module 4. Schöningh, Paderborn 2012 (UTB; 3472), ISBN 978-3-8252-3472-0 , p. 151.