Skip to main content
×
×
Home

Alienation of Temporal Goods in Roman Catholic Canon Law: A Potential for Conflict

  • Eithne D'Auria (a1)
Abstract

Alienation of church property is governed by both canon law and civil law, which may give rise to conflict. This paper addresses issues surrounding the Roman Catholic canonical requirements for alienation including the need to consult experts. Failure to consult, itself may give rise to concerns over the validity of the diocesan bishop's permission to alienate and, in turn, the lawfulness of the sale. This is not merely academic. Churches in the United States find themselves in the position where ownership of temporal goods is of increasing interest to the civil courts in the pursuit of compensation for successful litigants in the current wave of abuse cases.

Copyright
References
Hide All

2 The English translation of the canons of the current 1983 Code of Canon Law, hereafter referred to as ‘canon’, followed by the relevant number, is that in Sheehy, G, Brown, R, Kelly, D, McGrath, A (eds) The Canon Law: letter & spirit (London, 1995).

3 Morrisey, FG, ‘The alienation of temporal goods in contemporary practice’, Studia Canonica, 29 (1995) 293316, at p 294; or when strictly interpreted, as ‘the transfer of the ownership of property from one person to another, e.g., by sale or by gift’, see FG Morrisey in Sheehy et al (eds), The Canon Law Letter & Spirit, p 732, para 2572.

4 ‘Stable patrimony’ is defined: by RT Kennedy, in Beal, JP, Coriden, JA and Green, TJ (eds), New Commentary on the Code of Canon Law (NY, 2000), p 1495 as: ‘[A]ll property, real or personal, movable or immovable, tangible or intangible, that, either of its nature or by explicit designation, is destined to remain in the possession of its owner for a long or indefinite period of time to afford financial security for the future. It is the opposite of free or liquid capital which is intended to be used to meet operating expenses or otherwise disposed of within a reasonably short period of time (within one or, at most, two years)’; by Farrelly, A, ‘The Diocesan Finance Council: functions and duties according to the Code of Canon Law’, Studia Canonica 23 (1989) 149166, at p 160 as: ‘[A]ll goods which are designated as constituting the minimum, reliable economic base by which the juridic person can subsist in an autonomous manner and take care of the purposes and services that are proper to it’; and by FG Morrisey, in Sheehy et al (eds), The Canon Law Letter & Spirit, p 732, para 2573, as: ‘fixed capital’.

5 Canon 1295: ‘The provisions of Cann 1291–1994 (sic) [1294], to which the statutes of juridical persons are to conform, must be observed not only in alienation, but also in any transaction whereby the patrimonial condition of the juridical person could be adversely affected’. See Morrisey, FG, ‘The alienation of temporal goods in contemporary practice’, Studia Canonica, 29 (1995) 293316, at p 311: ‘Three elements usually enter into account when determining whether there is a risk of jeopardy: (a) loss or diminishing of ownership; (b) loss or diminishing of sponsorship; (c) loss or diminishing of control’. (Emphasis in original). Also Doheny, WJ, Practical Problems in Church Finance (Milwaukee, 1941) p 21: ‘The Canon Law regards all transactions, which may render the financial condition of the institute, province, or religious house less secure, as alienations’ (emphasis added), citing the Letter of Apostolic Delegate, 13 November 1936, NP 173/35. Further at fn 3: ‘It is to be borne in mind that the principles and rules enunciated in this Letter are really those of the Sacred Congregation for Religious, under whose authority the Letter was promulgated to the Ordinaries and to the Superiors of Religious Institutes in the United States’, emphasising its higher authority. Doheny further emphasises, at p 22, the broad interpretation of alienation intended by the 1917 Code: ‘It is clear from the … definitions that alienation is to be considered in the broad sense. The authors are in agreement on this point; and Canon 1533, with unmistakable clearness, states: “The formalities demanded according to the rulings of Canons 1530–1532 are required not only in alienation properly so-called, but also in any contract in which the status of the church may become jeopardized’.

6 Canon 1254§1: ‘The catholic Church, has the inherent right, independently of any secular power, to acquire, retain, administer and alienate temporal goods, in pursuit of its proper objectives’.

7 Canon 1290: ‘Without prejudice to Can. 1547, whatever the local civil law decrees about contracts, both generally and specifically, and about the voidance of contracts, is to be observed regarding matters which are subject to the power of governance of the Church, and with the same effect, provided that the civil law is not contrary to divine law, and that canon law does not provide otherwise.’ Canon 1284§1: ‘All administrators are to …: 2° ensure that the ownership of ecclesiastical goods is safeguarded in ways in which are valid in civil law; 3° observe the provisions of canon and civil law, and the stipulations of the founder or donor or lawful authority; they are to take special care that damage will not be suffered by the Church through the non-observance of the civil law. …’.

8 M López Alarcón, in Caparros, E, Thériault, M, Thorn, J (eds), Code of Canon Law Annotated (Montreal, 1993), p 800.

9 Canon 1293§1: ‘To alienate goods whose value exceeds the determined minimum sum, it is also required that there be: 1° a just reason, such as urgent necessity, evident advantage, or a religious, charitable or other grave pastoral reason; 2° an evaluation in writing by experts of the goods to be alienated.’

10 Canon 113§2: ‘In the Church besides physical persons, there are also juridical persons, that is, in canon law subjects of obligations and rights which accord with their nature.’

11 Canon 1256: ‘Under the supreme authority of the Roman Pontiff, ownership of goods belongs to that juridical person which has lawfully acquired them’.

12 Canon 1273: ‘The Roman Pontiff, by virtue of his primacy of governance, is the supreme administrator and steward of all ecclesiastical goods’.

13 Canon 116§1: ‘Public juridical persons are aggregates of persons or of things which are established by the competent ecclesiastical authority so that, within the limits allotted to them, they might in the name of the Church and in accordance with the provisions of law, fulfil the specific task entrusted to them in view of the public good. Other juridical persons are private. §2: Public juridical persons are given this personality either by the law itself or by a special decree of the competent authority expressly granting it. Private juridical persons are given this personality only by a special decree of the competent authority expressly granting it.’

14 Canon 1257§1: ‘All temporal goods belonging to the universal Church, to the Apostolic See or to other public juridical persons in the Church, are ecclesiastical goods and are regulated by the canons which follow, as well as by their own statutes. §2: Unless it is otherwise provided, temporal goods belonging to a private juridical person are regulated by its own statutes, not by these canons’. Interestingly, the Code of Canons of the Eastern Churches, Latin-English Edition, prepared under the auspices of the Canon Law Society of America (Washington, 2001), the canons of which are hereafter referred to as CCEO, does not explicitly state that for goods to be considered ‘ecclesiastical’ they must belong to a ‘public’ juridical person. See CCEO 1009§2. The English translation of the 1917 Code, taken from Peters, EN (Curator), The 1917 or Pio-Benedictine Code of Canon Law (San Francisco, 2001), the canons of which are hereafter referred to as CIC, defined ecclesiastical goods as: ‘Temporal goods, whether corporeal, both immovable and movable, or incorporeal, that belong to the universal Church and to the Apostolic See or to another moral person in the Church’, see CIC 1497§1. Carragher, M, ‘Papal and Episcopal Administration of Temporal Goods’, in Fox, J (ed) Render Unto Caesar: church property in Roman Catholic and Anglican canon law (Rome, 2000), 5768 at p 61 explains that if a church where divine worship is practised is owned privately it is not considered ‘ecclesiastical’ property, ‘because it is not the sacredness … of the functions … which renders it ecclesiastical or not but ownership by a public juridical person’. See also J Hite, ‘Church law on property and contracts’ (1984) 44 The Jurist 117–133, at 119: ‘… A college or hospital that is a separate civil law entity and is managed or operated by diocesan personnel or a religious institute, … even though the facility may have a religious name … is not a public juridic person and its property is not church property’.

15 RT Kennedy, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, pp 1494–5.

16 Canon 1291: ‘The permission of the authority competent by law is required for the valid alienation of goods which, by lawful assignment, constitute the stable patrimony of a public juridical person, whenever their value exceeds the sum determined by law’. Latin text, taken from Caparros, E, Thériault, M, Thorn, J (eds), Code of Canon Law Annotated (Montréal, 1993): ‘Ad valide alienanda bona, quae personae iuridicae publicae ex legitima assignatione patrimonium stabile constituunt et quorum valor summam iure definitam excedit, requiritur licentia auctoritatis ad normam iuris competentis’.

17 Canon 1292§1: ‘Without prejudice to the provisions of Can. 638§3, when the amount of the goods to be alienated is between the minimum and maximum sums to be established by the Bishops’ Conference for its region, the competent authority in the case of juridical persons not subject to the diocesan Bishop is determined by the juridical person's own statutes. In other cases, the competent authority is the diocesan Bishop acting with the consent of the finance committee, of the college of consultors, and of any interested parties. The diocesan Bishop needs the consent of these same persons to alienate goods which belong to the diocese itself.’ Latin text: ‘Salvo praescripto can. 638§3, cum valor bonorum, quorum alienatio proponitur, continetur intra summan mimimam et summam maximam ab Episcoporum conferentia pro sua cuiusque regione definiendas, auctoritas competens, si agatur de personis iuridicis Episcopo dioecesano non subiectis, propriis determinatur statutis; secus, auctoritas competens est Episcopus diocesanus cum consensu consilii a rebus oeconomicis et collegii consultorum necnon eorum quorum interest. Eorundem quoque consensu eget ipse Episcopus dioecesanus ad bona dioecesis alienanda.’

18 Canon 1292§2: ‘The additional permission of the Holy See is required for the valid alienation of goods whose value exceeds the maximum sum, or if it is a question of alienation of something given to the Church by reason of a vow, or of objects which are precious by reason of their artistic or historical significance.’ Latin text: ‘Si tamen agatur de rebus quarum valor summam maximam excedit, vei de rebus ex voto Ecclesiae donatis, vel de rebus pretiosis artis vel historiae causa, ad validitatem alienationis requiritur insuper licentia Sanctae Sedis’.

19 Caparros, E (ed), Exegetical Commentary on the Code of Canon Law, English Edition (Midwest Theological Forum, 2004), p 138: ‘If is possible that it is not known whether a value [of goods to be alienated] exceeds or does not exceed [the minimum amount referred to in canon 1292] … thus, expert evaluation will be the only means to dispel the doubt’.

20 A Mendonça, in Sheehy et al (eds), The Canon Law Letter & Spirit, p 9, para 28.

21 L Orsy, in Coriden, JA, Green, TJ and Heintschel, DE, The Code of Canon Law: a text and commentary (NY, 1985), p 31.

22 JM Huels, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 62.

23 Carragher, M, ‘Invalidating laws: expresse vel aequivalenter’, A.A.VV., Iuri canonico quo sit Christi Ecclesia felix (Salamanca, 2002), 171216, at 173.

24 Ibid, 174.

25 Canon 1290: ‘Without prejudice to canon 1547, whatever the local civil law decrees about contracts, both generally and specifically, and about the voiding of contracts, is to be observed regarding matters which are subject to the power of governance of the Church, and with the same effect, provided that the civil law is not contrary to divine law, and that canon law does not provide otherwise.’

26 Canon 1296: ‘When alienation has taken place without the prescribed canonical formalities, but is valid in civil law, the competent authority must carefully weigh all the circumstances and decide whether, and if so what, action is to be taken, namely personal or real, by whom and against whom, to vindicate the rights of the Church’.

27 Canon 1377: ‘A person who without the prescribed permission alienates ecclesiastical goods, is to be punished with a just penalty’.

28 Canon 381§1: ‘In the diocese entrusted to his care, the diocesan Bishop has all the ordinary, proper and immediate power required for the exercise of his pastoral office, except in those matters which the law or a decree of the supreme Pontiff reserves to the supreme or to some other ecclesiastical authority’.

29 Canon 87§1: ‘Whenever he judges that it contributes to their spiritual welfare, the diocesan Bishop can dispense the faithful from disciplinary laws, both universal laws and those particular laws made by the supreme ecclesiastical authority for his territory or his subjects. He cannot dispense from procedural laws or from penal laws, nor from those whose dispensations is specially reserved to the Apostolic See or to some other authority.’

30 Canon 87§2: ‘If recourse to the Holy See is difficult, and at the same time there is danger of grave harm in delay, any Ordinary can dispense from these laws, even if the dispensation is reserved to the Holy See, provided the dispensation is one which the Holy See customarily grants in the same circumstances, and without prejudice to Can.291.’

31 Canon 1291: ‘The permission of the authority competent by law is required for the valid alienation of goods which, by lawful assignment, constitute the stable patrimony of a public juridical person, whenever their value exceeds the sum determined by law.’

32 Canon 1292§1: ‘Without prejudice to the provisions of Can. 638§3, when the amount of the goods to be alienated is between the minimum and maximum sums to be established by the Bishops’ Conference for its region, the competent authority in the case of juridical persons not subject to the diocesan Bishop is determined by the juridical person's own statutes. In other cases, the competent authority is the diocesan Bishop acting with the consent of the finance committee, of the college of consultors, and of any interested parties. The diocesan Bishop needs the consent of these same persons to alienate goods which belong to the diocese itself.’

33 According to JJ Myers, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 881, ‘interested parties’ are ‘primarily beneficiaries’.

34 RT Kennedy, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 1499.

35 FG Morrisey in Sheehy et al (eds), The Canon Law Letter & Spirit, p 735.

36 Canon 1292§2: ‘The additional permission of the Holy See is required for the valid alienation of goods whose value exceeds the maximum sum, or if it is a question of alienation of something given to the Church by reason of a vow, or of objects which are precious by reason of their artistic or historical significance.’

37 That is the minimum sum determined by the Bishops' Conference in accordance with canon 1292§1.

38 Canon 1293§1: ‘To alienate goods whose value exceeds the determined minimum sum, it is also required that there be: 1° a just reason, such as urgent necessity, evident advantage, or a religious, charitable or other grave pastoral reason; 2° an evaluation in writing by experts of the goods to be alienated.’

39 Canon 1293§2: ‘To avoid loss to the Church, any other precautions drawn up by lawful authority are also to be followed.’

40 CIC 1530§1: ‘With due regard for the prescription of Canon 1281§1, for the alienation of ecclesiastical goods, whether immobile or mobile, that are such that they should be preserved, there is required: 1° An estimation of the thing by a thoughtful expert done in writing; 2° Just cause, that is, urgent necessity, or evident utility to the Church, or piety; 3° Permission of the legitimate Superior, without which the alienation is invalid.’

41 Augustine, CP, A Commentary on the New Code of Canon Law (8 vols, London, vol VI, 1921) p 595.

42 CIC 105: ‘When the law requires that a Superior, in order to act, needs the consent or advice of various persons: 1° If consent is required, the superior invalidly acts against their vote; if only advice [is required] through such words as, for example, from the advice of the consultors, or having heard the Chapter, pastor, and so on, it is sufficient to act validly that the Superior shall hear those persons; although he is bound by no obligation of acceding to their vote, even if it is unanimous, still, great [care should be taken] when there are many persons to be heard, to deferring to their united opinions, nor from them, without prevailing reasons, in his judgement, [should he] depart.’

43 Augustine, CP, A Commentary on the New Code of Canon Law (8 vols, vol II, 4th revised edition, London, 1923) at p 35.

44 Doyle, E, ‘The Consultation of Experts: an historical outline of the legislation and practice’, Doctoral Thesis (Ottawa, 1949), at p 233: ‘The experts employed in accordance with canon 1530 in the alienation of church property have the role of arbiters, for their valuation must be adopted, and the property may not be sold below the price set’.

45 Canon 34§1: ‘Instructions, namely, which set out the provisions of a law and develop the manner in which it is to be put into effect, are given for the benefit of those whose duty it is to execute the law, and they bind them in executing the law. Those who have executive power may, within the limits of their competence, lawfully publish such instructions.’

46 Sacred Congregation de Propaganda Fide (Rome, 30 July 1867).

47 Breitenbeck, M, ‘The role of experts in ecclesial decision-making in the 1983 Code of Canon law’, doctoral thesis (Washington, 1987), p 133, fn 457, citing Cleary, JF, ‘Canonical limitations on the alienation of church property’, Canon Law Studies; 100 (Washington, 1936), p 63; Doheny, W, Practical Problems in Church Finance (Milwaukee, 1941) p 28; and Moran, S and De Ante, MC, Comentarios al Códico de Derecho Canónico (Madrid, 1964), 3: p 175.

48 M Breitenbeck, ‘The role of experts in ecclesial decision-making in the 1983 Code of Canon law’, p 269.

49 Breitenbeck, M, ‘The requirements for experts in Church law’, The Jurist, 50 (1990), 257288, p 271.

50 Alarcón, M López, in Caparros, E, Thériault, M, Thorn, J (eds), Code of Canon Law Annotated (Montreal, 1993), p 801.

51 Ibid, p 803.

52 JJ Myers, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 879.

53 Canon 127§1: ‘When the law prescribes that, in order to perform a juridical act, a Superior requires the consent or the advice of some college or group of persons, the college or group must be convened in accordance with Can 166, unless, if there is question of seeking advice only, particular or proper law provides otherwise. For the validity of the act, it is required that the consent be obtained of an absolute majority of those present, or that the advice of all be sought. §2: When the law prescribes that, in order to perform a juridical act, a superior requires the consent or advice of certain persons as individuals: 1° if consent is required, the Superior's act is invalid if the superior does not seek the consent of those persons, or acts against the vote of all or any of them; 2° if advice is required, the Superior's act is invalid if the superior does not hear those persons. The Superior is not in any way bound to accept their vote, even if it is unanimous; nevertheless, without what is, in his or her judgement, an overriding reason, the Superior is not to act against their vote, especially if it is a unanimous one’.

54 JJ Myers, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 881.

55 Ibid, p 881.

56 Ibid, p 881.

57 Ibid, p 878.

58 Canon 1293§1: ‘To alienate goods whose value exceeds the determined minimum sum, it is also required that there be: 1° a just reason, such as urgent necessity, evident advantage, or a religious, charitable or other grave pastoral reason; 2°an evaluation in writing by experts of the goods to be alienated. §2: To avoid loss to the Church, any other precautions drawn up by lawful authority are also to be followed.’

59 Canon 1294§1: ‘Normally goods must not be alienated for a price lower than that given in the valuation. §2: The money obtained from alienation must be carefully invested for the benefit of the Church, or prudently expended according to the purposes of the alienation’.

60 RT Kennedy, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 1500, fn 155.

61 CCEO 1035§1: ‘The alienation of ecclesiastical goods, which constitute by legitimate designation the stable patrimony of a juridic person, requires the following: 1° a just cause, such as urgent necessity, evident advantage, piety, charity, or a pastoral reason; 2° a written appraisal by experts of the asset to be alienated; 3° in cases prescribed by law, written consent of the competent authority, without which the alienation is invalid’.

62 Pospishil, V, Eastern Catholic Canon Law, Revised and Augmented Edition (New York, 1996), p 702.

63 G Nedungatt, SJ (ed) A Guide to the Eastern Code: A Commentary on The Code of Canons of the Eastern Churches (Rome, 2002), p 704.

64 Ibid, p 707.

65 A Mendonça, in Sheehy et al (eds), The Canon Law Letter & Spirit, para 29, p 9: ‘The term expressly is a specifically canonical one and must be understood as such. If a matter is stated explicitly, then it is manifestly stated in an “express” manner: Can. 126 is a clear example among many in the Code. [Can 126: ‘An act is invalid when performed as a result of ignorance or of error which concerns the substance of the act, or which amounts to a condition sine qua non; otherwise it is valid, unless the law provides differently. But an act done as a result of ignorance or error can give rise to a rescinding action in accordance with the law’]. Equally “express”, however, is a matter which is stated implicitly, as is exemplified in the following Can 127: it is explicitly stated that “for the validity of the act, it is required that the consent be obtained of an absolute majority of those present …” thereby stating that without such a majority the act would be invalid.’

66 M Carragher, ‘Invalidating laws: expresse vel aequivalenter’, at 189, citing Reiffenstuel, Ius Canonicum universum complectans tractatem de regulis iuris, Parisiis, 1864, tit. 1, de constitionibus, §X1, n 239, F Suárez, Tractatus de Legibus ac Deo Legislatore, Neapoli, ex typis Fibrenianis, lib V, cap XIX, p 85, n 6 and Roelker, E, Invalidating Laws (Patterson, NJ, 1995).

67 M Carragher, ‘Invalidating laws: expresse vel aequivalenter’, at 197.

68 Ibid, at 216.

69 Ibid, at 189, citing Navarrete, U, ‘“Consensus naturaliter sufficiens, sed iuridice inefficax”: Limiti alla Sovranità del Consenso Matrimoniale’, Periodica 88 (1999) 361389 at 376.

70 Ibid, at 190.

71 Canon 1055§1: ‘The marriage covenant, by which a man and a woman establish between themselves a partnership of their whole life, and which of its own very nature is ordered to the well-being of the spouses and to the procreation and upbringing of children, has, between the baptised, been raised by Christ the Lord to the dignity of a sacrament’.

72 M Carragher, ‘Invalidating laws: expresse vel aequivalenter’, at 173.

73 Canon 1108§1: ‘Only those marriages are valid which are contracted in the presence of the local Ordinary or parish priest or of the priest or deacon delegated by either of them, who, in the presence of two witnesses, assists, in accordance with the rules set out in the following canons, and without prejudice to the exceptions mentioned in Cann. 144, 1112§1, 1116 and 1127§§2–3.’

74 Canon 1277: ‘In carrying out acts of administration which, in the light of the financial situation of the diocese, are of major importance, the diocesan Bishop must consult the finance committee and the college of consultors. However, in addition to the cases specifically expressed in the universal law or in the documents of foundation, for acts of extraordinary administration he needs the consent of the committee and of the college of consultors. It is for the Bishop's conference to determine what are to be regarded as acts of extraordinary administration’.

75 FG Morrisey in Sheehy et al (eds), The Canon Law Letter & Spirit, p 723–724, para 2542.

76 Canon 127§1.

77 Canon 127§2.

78 M Carragher, ‘Invalidating Laws: expresse vel aequivalenter’, at 185.

79 Ibid, at 190.

80 Book V, Title III, Canon 1290.

81 Canon 1290: ‘Without prejudice to canon 1547, whatever the local civil law decrees about contracts, both generally and specifically, and about the voiding of contracts, is to be observed regarding matters which are subject to the power of governance of the Church, and with the same effect, provided that the civil law is not contrary to divine law, and that canon law does not provide otherwise.’

82 Canons 1291–1292.

83 Canon 1293§1: ‘To alienate goods whose value exceeds the determined minimum sum, it is also required that there be: 1° a just reason, such as urgent necessity, evident advantage, or a religious, charitable or other grave pastoral reason; 2°an evaluation in writing by experts of the goods to be alienated’.

84 Latin: ‘requiritur insuper’, indicating a direct relationship between canons 1293 and 1292.

85 That is, (a) consent of the competent authority; (b) information regarding parts of divisible assets already alienated; (c) the requirement to give informed consent.

86 Canon 1293§1° defines a ‘just reason’ as ‘urgent necessity, evident advantage, or a religious, charitable or other grave pastoral reason’, the latter implying that the list is not exhaustive.

87 Canon 124§1: ‘For the validity of a juridical act, it is required that it be performed by a person who is legally capable, and it must contain those elements which constitute the essence of the act, as well as the formalities and requirements which the law prescribes for the validity of the act.’

88 Canon 1292§3: ‘When a request is made to alienate goods which are divisible, the request must state what parts have already been alienated; otherwise, the permission is invalid.’ Latin text: ‘Si res alienanda sit divisibilis, in petenda licentia pro alienatione exprimi debent partes antea alienatae; secus licentia irrita est.’

89 See fn 46, supra.

90 Canon 1291: ‘The permission of the authority competent by law is required for the valid alienation of goods which, by lawful assignment, constitute the stable patrimony of a public juridical person, whenever their value exceeds the sum determined by law.’

91 FG Morrisey in Sheehy et al (eds), The Canon Law Letter & Spirit, p 732, para 2571 and p 733, para 2575.

92 Ibid, p 734, para 2576.

93 Canon 127§3: ‘All whose consent or advice is required are obliged to give their opinions sincerely. If the seriousness of the matter requires it, they are obliged carefully to maintain secrecy, and the Superior can insist on this obligation’.

94 Canon 1292§4: ‘Those who must give advice or consent to the alienation of goods are not to give this advice or consent until they have first been informed precisely both about the economic situation of the juridical person whose goods it is proposed to alienate and about alienations which have already taken place’.

95 M Carragher, ‘Papal and episcopal administration of temporal goods’, in J Fox (ed) Render Unto Caesar, 57–68 at p 66.

96 R Hill, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 92.

97 Ibid, p 92.

98 M Wijlens, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 181.

99 Ibid, p 182.

100 CCEO 934§1: ‘If it is established by law that to place a juridic act an authority needs the consent or counsel of some group of persons, the group must be convoked in accord with the norm of can. 948, unless when it concerns seeking counsel only, particular law provides otherwise for cases stated by that law. For such a juridic act to be valid, however, it is required that the consent of an absolute majority of those present be obtained or that the counsel of all be sought, with due regard for §2, n3.’

101 M Wijlens, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 182.

102 Ibid p 182, fn 16.

103 FG Morrisey in Sheehy et al (eds), The Canon Law Letter & Spirit, p 735. Emphasis added.

104 Canon 1283: ‘Before administrators undertake their duties: 1° they must take an oath, in the presence of the Ordinary or his delegate, that they will well and truly perform their office; 2° they are to draw up a clear and accurate inventory, to be signed by themselves, of any immovable goods, of those movable goods which are precious or in any way of cultural value, and of any other goods, with a description and an estimate of their value; and they are to review any inventory already drawn up; 3° one copy of this inventory is to be kept in the administration office and another in the curial archive; any change which takes place in the property is to be noted on both copies’.

105 Canon 39: ‘Conditions attached to an administrative act are considered to concern validity only when they are expressed by the particles “if”, “unless”, “provided that”’.

106 Defined by O Robleda, De Conceptu actus iuridici, p 51, translated by Hughes, M in ‘A new title in the Code: juridic acts’, Studia Canonica 14 (1980) 391403, cited by M Wijlens in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 177, as: ‘An externally manifested act of the will by which a certain juridical effect is intended’.

107 Canon 127§1: ‘When the law prescribes that, in order to perform a juridical act, a Superior requires the consent or the advice of some college or group of persons, the college or group must be convened in accordance with Can 166, unless, if there is question of seeking advice only, particular or proper law provides otherwise. For the validity of the act, it is required that the consent be obtained of an absolute majority of those present, or that the advice of all be sought. §2: When the law prescribes that, in order to perform a juridical act, a superior requires the consent or advice of certain persons as individuals: 1° if consent is required, the Superior's act is invalid if the superior does not seek the consent of those persons, or acts against the vote of all or any of them; 2° if advice is required, the Superior's act is invalid if the superior does not hear those persons. The Superior is not in any way bound to accept their vote, even if it is unanimous; nevertheless, without what is, in his or her judgement, an overriding reason, the Superior is not to act against their vote, especially if it is a unanimous one’.

108 R Hill, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 91.

109 Pontifical Council for the Interpretation of Texts, Authentic Interpretation of 15 May 1985, AAS 77 (1985) 771, cited by M Wijlens in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 181, fn 13.

110 R Hill, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 91.

111 Latin: ‘… aestimato rei alienandaea peritis scripto facta’.

112 Canon 127§2: ‘When the law prescribes that, in order to perform a juridical act, a superior requires the consent or advice of certain persons as individuals: …, 2° if advice is required, the superior's act is invalid if the superior does not hear those persons. The superior is not in any way bound to accept their vote, even if it is unanimous; nevertheless, without what is, in his or her judgement, an overriding reason, the Superior is not to act against their vote, especially if it is a unanimous one’.

113 R Hill, in Coriden, Green and Heintschel, The Code of Canon Law: a text and commentary, p 92.

114 Ibid, p 182.

115 M Wijlens, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 182.

116 Canon 1294§1: ‘Normally goods must not be alienated for a price lower than that given in the valuation.’

117 This provision is also included in the aforementioned Instruction. See fn 46.

118 See fn. 44 supra.

119 A custom is defined, by A Mendonça, in Sheehy et al (eds), The Canon Law Letter & Spirit, p 21, as ‘a common or constant mode of action adopted by a community’.

120 Canon 5§1: ‘Universal or particular customs which have been in effect up to now but are contrary to the provisions of these canons and are reprobated in the canon of this Code, are completely suppressed, and they may not be allowed to revive in the future….’.

121 Canon 26: ‘Unless it has been specifically approved by the competent legislator, a custom which is contrary to the canon law currently in force, or is apart from the canon law, acquires the force of law only when it has been lawfully observed for a period of thirty continuous and complete years …’.

122 Canon 24§2: ‘A custom which is contrary to or apart from canon law, cannot acquire the force of law unless it is reasonable; a custom which is expressly reprobated in the law is not reasonable’.

123 A Mendonça, in Sheehy et al (eds), The Canon Law Letter & Spirit, p 22. Also JM Huels, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 89: ‘Unreasonable customs are those that are against faith or morals, occasion sin, are opposed to the constitution of liberty of the Church, harm the common good or disrupt the “nerve of ecclesiastical discipline”’, citing Sacred Congregation for the Council, response 14 December 1918, AAS 11 (1919) 128; CLD 1, 97–98.

124 JM Huels, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 90, describes this as ‘a normative practice that the community wishes to observe and maintain’, not ‘a merely optional practice about whose observance and preservation the community is indifferent’.

125 The ‘intention of introducing law’ is defined by Augustine Mendonça, in Sheehy et al (eds), The Canon Law Letter & Spirit, p 23, as an intention ‘to bind itself’.

126 JM Huels, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 9, holds that not only must a community intend, as distinct from tolerate, the norm, but it must be practiced by a majority, as distinct from a minority within the community.

127 Canon 14: ‘Laws, even invalidating and incapacitating ones, do not oblige when there is a doubt of law. When there is a doubt of fact, however, Ordinaries can dispense from them provided, if there is question of a reserved dispensation, it is one which the authority to whom it is reserved is accustomed to grant.’

128 A Mendonça, in Sheehy et al (eds), The Canon Law Letter & Spirit, p 13.

129 Canon 17: ‘Ecclesiastical laws are to be understood according to the proper meaning of the words considered in their text and context. If the meaning remains doubtful or obscure, there must be recourse to parallel places, if there be any, to the purpose and circumstances of the law, and to the mind of the legislator.’

130 Canon 1291: ‘The permission of the authority competent by law is required for the valid alienation of goods which, by lawful assignment, constitute the stable patrimony of a juridical person, whenever their value exceeds the sum determined by law’.

131 Canon 90: ‘A dispensation from an ecclesiastical law is not to be given without a just and reasonable cause, taking into account the circumstances of the case and the importance of the law from which the dispensation is given; otherwise the dispensation is unlawful and, unless given by the legislator or his superior, it is also invalid.’

132 CCEO 1038§1: ‘Those whose counsel, consent or confirmation is required by law to alienate ecclesiastical goods, are not to give counsel, consent or confirmation before they have been thoroughly informed of the economic state of the juridic person, whose temporal goods are proposed for alienation, and of previous alienations.’

133 CCEO 1038§2: ‘Counsel, consent or confirmation is considered not to have been given unless, in seeking them, previous alienations are mentioned’.

134 Canon 1291.

135 RT Kennedy, in Beal, Coriden and Green (eds), New Commentary on the Code of Canon Law, p 1496.

136 RR Thomas [1995] in Espelage, Arthur (ed) CLSA Advisory Opinions 1994–2000 (Washington, 2002) at p 12, defines ‘majority’ as ‘any number over 50% or 50% +1’. Referring to Black's Law Dictionary (sixth edition), he says ‘“majority” means “the greater number”. If there are two candidates, then the greater number of votes. But the term “absolute majority” is used to clarify the difference between “majority” and “plurality”. Therefore, when more than two candidates or positions are being voted on the “absolute majority” would be the number greater than half the total valid votes cast.’

137 Canon 1294§1: ‘Normally goods must not be alienated for a price lower than that given in the valuation.’

1 LLM Wales. I am very grateful to Professor Norman Doe and Professor Aidan McGrath for their help and guidance in preparing this paper and to the AHRC and ESRC for their funding.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
  • URL: /core/journals/ecclesiastical-law-journal
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed