RESCRIPTS

Rescripts are written replies from competent ecclesiastical authorities in answer to requests for privileges, dispensations, favors, or information. The use of rescripts dates back to the early Church, but the legal institute took form in the 12th century and derives from Roman law.

Although requests may be oral, they are expected to be in writing, and the answer will also be written. Rescripts from the Roman Curia are issued in the form of apostolic bulls, briefs, or simple rescripts. Generally, they contain a summary of the petition, an outline of the reasons why they are being issued, and a third section in which the actual response concerning some point of law is given or the favor requested is granted or denied. To this last section may be appended any conditions that are to be observed. The present law deals mainly with the right to request, validity, interpretation, execution, and revocation of rescripts.

All who are not explicitly forbidden by law may freely petition rescripts (Codex iuris canonici c. 60). Rescripts may be sought and obtained for another, even without the latter's knowledge and consent (Codex iuris canonici c. 61; Codex Canonum Ecclesiarium Orientalium c. 1528). Unless otherwise stated, the validity of such a rescript does not depend upon its acceptance; but the recipient is under no obligation to make use of the favor received.

Validity. Whenever conditions are added to rescripts, the nature of the subject matter, the requirements of law, or the very force of the words used may make it clear that such conditions are essential for validity. Otherwise, only those conditions are essential for validity that are introduced by such expressions as "if," "provided that" (si, dummodo ), or words of similar meaning. Truth in the recitals (preces ) of the petition is an implied condition for the lawfulness of every rescript. Misrepresentation of the truth by suppression (subreptio ) or positive falsification (obreptio ) of the facts and circumstances may not render a rescript invalid or ineffective (Codex iuris canonici c. 63; Codex Canonum Ecclesiarium Orientalium c. 1529). Accidental errors in the name of the recipient, his or her place of residence, or subject matter invalidate a rescript only when, in the judgment of the ordinary, there is serious doubt regarding the identity of the person or the matter in question (Codex iuris canonici c. 66).

Before a favor refused by one congregation or office of the Roman Curia can be granted validly in a rescript by another congregation or office, or by the another competent authority, the consent of the congregation or office with which the matter was first taken up must be obtained, without prejudice to the rights of the Sacred Penitentiary in matters involving the internal forum (Codex iuris canonici c. 64). A favor denied by the vicar general cannot be obtained validly from the bishop without mention of the refusal, and should the bishop refuse a favor, his consent is necessary before a valid rescript granting the said favor can be obtained from the vicar general (Codex iuris canonici c. 65 §3; Codex Canonum Ecclesiarium Orientalium c. 1530). One is not to seek from another ordinary a favor denied by one's own ordinary without mention of refusal, and, before granting the favor, the second ordinary should ask of the first the reasons for the refusal (Codex iuris canonici c. 65 §1).

Interpretation. When the meaning of the words of a rescript is clear, no interpretation is really necessary. An initial attempt must be made to understand every rescript according to the proper meaning of its terms. Common usage, or the use a term receives in law, generally determines the proper, ordinary meaning of the words. Rescripts are not to be extended to include persons, cases, or things not expressed in the proper meaning of the words. Before the meaning of a rescript is considered objectively doubtful, it should be read carefully and every reasonable effort made to comprehend the meaning intended.

In real doubt, rescripts that pertain to legal suits and the administration of justice, those that restrict a person's rights, those adverse to the acquired rights of others, and those contrary to the law in such a way as to favor private persons are to be strictly interpreted. All other doubtful rescripts are to be given a broad interpretation, and the words are to be understood in the widest sense of their proper meaning (Codex iuris canonici c. 36; Codex Canonum Ecclesiarium Orientalium c. 1512 pp. 1–2).

Execution. Rescripts are issued directly to the recipient (in forma gratiosa ) or through the medium of an executor (in forma commissaria ). When no executor is used, rescripts take effect the moment they are issued. Rescripts requiring execution become effective from the time of the execution.

The executor must inspect the rescript and satisfy himself regarding its authenticity and integrity. He must proceed according to his instructions, fulfill all conditions, and follow the proper form of procedure. At times the decision whether a rescript should be executed is left to the prudent and conscientious discretion of the executor. When the executor is without such discretionary power, he must proceed to the execution of the rescript, unless it is clear that the rescript is invalid for some reason (e.g., subreptio or obreptio ), that the conditions appended have not been fulfilled, or that the rescript cannot be upheld because of another grave reason. In any of these cases the executor shall immediately suspend execution and inform the grantor (Codex iuris canonici c. 41; Codex Canonum Ecclesiarium Orientalium c. 1522). The executor is free, according to his prudent judgment, to substitute another for himself, unless substitution is forbidden, some person has been designated substitute, or the executor has been chosen for his personal qualifications (Codex iuris canonici c. 43; Codex Canonum Ecclesiarium Orientalium c. 1524). The successor in the executor's dignity or office may execute all rescripts except those for which the executor was chosen by reason of his special skills (Codex iuris canonici c. 44; Codex Canonum Ecclesiarium Orientalium c. 1525). A mistake made in the execution of a rescript may be remedied by executing the rescript anew (Codex iuris canonici c. 45; Codex Canonum Ecclesiarium Orientalium c. 1526).

Cessation. Rescripts may be permanent or they may cease by the lapse of the specified time for which they were given, by the fulfillment of a resolutory condition, by renunciation by the recipient, or by revocation through a special act of the grantor. A revoked rescript remains in force until the recipient has been informed of the revocation. A law contrary to a rescript normally does not revoke it (Codex iuris canonici c. 73; Codex Canonum Ecclesiarium Orientalium c. 1513 §1). The vacancy of the Holy See or a diocese does not cancel or nullify a rescript, unless the contrary is made clear (Codex iuris canonici c. 46; Codex Canonum Ecclesiarium Orientalium c. 1513 §2). If a rescript contains a privilege or dispensation instead of a simple favor, the canons on dispensations and privileges must also be observed (Codex iuris canonici c. 75).

Bibliography: r. naz, Dictionnaire de droit canonique, ed. r. naz, 7 v. (Paris 1935–64) 7:607–635. t. l. bouscaren and a. c. ellis, Canon Law (3d rev. ed. Milwaukee, WI 1957) 56–63. a. g. cicognani, Canon Law (2d rev. ed. Westminster, MD 1947). g. michiels, Normae generales jurist canonici. Commentarius libri I. Codex iuris canonici, 2 v. (2d ed. Paris-Turnai-Rome 1955) 2:279–479. d. e. adams, The Truth Required in the 'Preces' for Rescripts (Catholic University of America, CLS 392; Washington 1960). b. c. gerhardt, Interpretation of Rescripts (Catholic University of America, CLS 398; Washington 1959). w. h. o'neill, Papal Rescripts of Favor (Catholic University of America, CLS 57; Washington 1930). a. van hove, Commentarium Lovaniense in Codicem iuris canonici 1, v.1–5 (Mechlin 1928–); v.1, Prolegomena (2d ed. 1945) 1.4.

[b. c. gerhardt]