Satisfaction of Civil Judgments Against Public Juridic Persons in the United States in Light of Canons 22 and 1291: Aliud Iure Canonico Caveatur?
Satisfaction of Civil Judgments Against Public Juridic Persons in the United States in Light of Canons 22 and 1291: Aliud Iure Canonico Caveatur?
Mark T. Reeves
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Article 3
This article explores a narrow segment of canon law in
relation to satisfaction of civil judgments. Its purpose is to
determine whether any principles and traditions in canon law
may be useful in constructing a persuasive argument under the
First Amendment to support the proposition that stable
patrimony of public juridic persons is unavailable to satisfy civil
judgments. The case law in the United States is relatively
straightforward concerning the protection offered to religious
institutions, including public juridic persons of the Roman
Catholic
Church, by the
Free
Exercise
Clause of the
First
Amendment.'
However, whether the stable patrimony of a
*The author is a priest of the Archdiocese of Miami. He also serves as Of
Counsel to Steel Hector & Davis, LLP, a Miami law firm, which graciously provided
assistance with the civil law research for this article. The author attended the
University of Miami in Coral Gables, Florida (B.Arch., 1978; M.Arch., 1980; J.D.,
1984) and the Pontifical Gregorian University in Rome, Italy (S.T.B., 2001; J.C.L.,
2003).
1See Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872,
87677 (1990).
The Free Exercise Clause of the First Amendment, which has been made
applicable to the States by incorporation into the Fourteenth Amendment,
provides that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.. " The free exercise of
religion means, first and foremost, the right to believe and profess whatever
religious doctrine one desires. Thus, the First Amendment obviously excludes
all "governmental regulation of religious beliefs as such." The government may
not compel affirmation of religious belief, punish the expression of religious
doctrines it believes to be false, impose special disabilities on the basis of
religious views or religious status, or lend its power to one or the other side in
controversies over religious authority or dogma. Id. (citations omitted).
public juridic person should be available to satisfy a civil
judgment against such public juridic person remains an open
issue.
When a civil judgment is rendered against a public juridic
person, 2 and all opportunities to appeal such judgment have
been exhausted or have expired, the party in whose favor the
judgment was rendered generally has a right to enforce such
judgment. 3 This right gives rise to a corresponding obligation on
the part of the party against whom the judgment was rendered
to satisfy such judgment. 4 In order to determine the effect of an
enforcement action, which would obligate a public juridic person
to satisfy a civil judgment, reference may be made to CIC-1983
cc. 22 and 1291.
I. CODEX IURIS CANONICI (1983), CANON 22: THE CANONIZATION
OF CIVIL LAW
CIC-1983 c.22, in a broad sense, canonizes civil law into the
scheme of canon law with respect to those matters in which the
The question remaining is whether civil law may compel enforcement of a civil
judgment against a public juridic person to the extent that the amount of such
judgment would require the transfer or liquidation of stable patrimony which,
according to the principals and traditions of canon law, serves as the economic
foundation of such public juridic person. This issue must be examined in view of the
fact that such public juridic person is ordered "in finem missioni Ecclesice
congruentum" ("to a purpose befitting the Church's mission") JOHN PAUL II, CODEX
IURIS CANONICI, January 25, 1983, AAS 75, 11 (1983) c.114, § 1 [hereinafter
CIC1983], which mission "DeusEcclesiaein mundo adimplendamconcredidit"("God
entrusted to the Church to be fulfilled in the world"). CIC-1983 c.204, § 1.
2 For purposes of this study, the term public juridic person has the meaning
found in CIC-1983 c.116, § 1, except that only aggregates of persons (i.e., not
aggregates of things) are considered in this study.
Public juridic persons are aggregates of persons or of things that 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,
fulfill the specific task entrusted to them in view of the public good. Other juridic
persons are private.
3 FED. R. CIV. P. 69(a).
4In the United States, civil law generally provides a process to enforce a civil
judgment. See, e.g., FED. R. CIV. P. 69(a) ("Process to enforce a judgment for the
payment of money shall be a writ of execution .... ). While such process may not
impose an express obligation upon the party against whom a civil judgment has
been rendered to satisfy the judgment, the process certainly imposes an implicit
obligation upon such party through the enforcement power of the court.
jurisdictions of civil law and canon law overlap. 5 In a narrow
sense, CIC- 1983 c.22 canonizes civil law into the scheme of canon
law to the extent that specific reference to civil law is introduced
by other canons that address particular matters.6
A. The Development of CIC-1983 c.22
CIC-1983 c.22 appears for the first time, in its present form,
in CIC-1983. However, CIC-1983 c.22 has its modern origins in
CIC-1917, particularly in CIC-1917 c.1529. Prior to the
CIC1917, the Church had a tradition of referring to civil laws in
appropriate circumstances.8 In fact, the Church occasionally
adopted civil laws that it believed to be within the competence of
its authority and beyond the competence of civil authority. 9
5CIC-1983 c.22. Some commentators adopt the position that canon law refers to
civil law in general. CANON LAW in CATHOLIC ENCYCLOPEDIA § III at
http://www.newadvent.org/cathen/09056a.htm (last updated June 26, 2003). A
cogent argument can be made that CIIC-1983 c.22 was introduced into Book 1, De
normis generalibus,of CIC-1983 at the conclusion of the redaction process, as a
generalprinciple of law. This argument maintains the view that specific instances of
the general principle that canon law refers to civil law exist throughout CIC-1983
merely because such specific instances were redacted prior to the time that CIC-198
c.22 was introduced into the draft of CIC-1983. Those who advocate this position
argue that CICI-1983 c.22 should be interpreted to apply to a broader range of
situations than merely those situations in which canon law specifically makes
reference to civil law. See V. DE PAOLIS, I BENI TEMPORALI DELLA CHIESA, 33 n.73.
6 See, e.g. CIC-1983 cc.98 s2, 110, 197, 1286, 1290, 1500, 1588 §2, 1714.
7Canon 1529 of CIC-1917, Codex Iuris CanoniciPii X PontifricisMaximi. Iussu
digestus Benedicti PapaeXVauctoritatepromulgatus,Vatican City 1933 (Gasparri,
P. Ed.) is the first canon of Title 29, De contractibusin Book 3, De rebus. It has a
complementary, parallel canon in CIC-1983 c.1290, found in Title 3, De contractibus
acpraesertimde alienationein Book 5, De bonis ecclesiae temporalibus. While
CIC1917 c.1529 appears to be the direct predecessor CIC-1983 c.1290, its relation to
CIC-1983 c.22 is less direct.
8 For example, Pope Lucius III (1181-1185) decreed that the sacred canons are
aided by the constitutions of princes, and commanded that matters should be
concluded in accordance with the statutes enacted by civil laws and canons. X. 5, 32,
1 ("[S]icuthumanae leges non dedignantursacros canones imitari,ita et sacrorum
statutacanonum priorumprincipumconstitutionibusadiuvantur.") The edition
used for all references in this article to documents from the CORPUS IURIS CANONICI
is CORPUS IURIS CANONICI (Aemilius Friedberg ed., 1959).
9This phenomenon finds expression in matrimonial law. X. 5, 15, 5, in which
Roman law, governing the diriment impediment of perpetual impotence, was
recognized by Pope Celestine III (1191-1198) and C.30, q.3, c.1, in which Pope St.
Nicholas 1 (858-867) adopted a law governing the impediment of legal relationship,
which existed in Roman law. See AMLETO GIOVANNI CICOGNANI, CANON LAW, 119 §
1 at 119 (Rev. Joseph M. O'Hara & Rev. Francis Brennan trans., 1934).
Later, as the science of canon law developed into an autonomous
body of law, this practice subsided because there was less of a
need for ecclesiastical courts to seek recourse to civil law.10
Notwithstanding the developments in the science of canon
law, civil law continued to be applied in ecclesiastical matters in
those instances in which canon law was silent." In such cases,
Roman law, 12 which had been the foundation of the law of the
early Christian communities, continued to be a fons
suppletorius13 of canon law. As the European nations began to
develop their own codes, canonists were at odds with respect to
whether, in cases in which canon law was silent, the fons
suppletorius would be Roman law or the law of the more recent
European codes. 14 Some canonists maintained the position that
the more modern codes should suffice. 15 Other canonists held
the view that the more modern codes should suffice with respect
to prospective laws and to the introduction of custom, while
Roman law should suffice with respect to matters regarding
established laws. 16 Ultimately, with the promulgation of
CIC1917, reference to civil law as a fons suppletorius was
abrogated.' 7
10Canon law developed as an autonomous body of law, independent from civil
law, as can be seen, for example, in a decree of Pope Honorius III (1216-1227),
"[Qlccurrunt raroecclesiasticaecausae tales,quae no possint statutiscanonicis
expediri.... Firmiterinterdicimus et..in.hibemus ..q.uisquam docere vel audire ius
civile praesumat."Extravagantescommunes in Corpus iuriscanonici 5, 33, 28.
[hereinafter X].
11See 2 THE NEW ENCYCLOPEDIA BRITANNICA 809 (15th ed. 1998) (discussing
sources of cannon law).
12Id. at 151.
13In this article, fons suppletorius means a source of canon law to which recourse
is made in the event that a lacuna is discovered in the application of a canon or in
the event that a canon is deficient in any manner. See P. MAROTO, INSTITUTIONES
IuRis CANONICI AD NORMAM Novi CODICIS § I 443, 446.
14CANON LAW in CATHOLIC ENCYCLOPEDIA § III at http://www.newadvent.org/
cathen/09056a.htm (updated June 26, 2003).
15CICOGNANI, supranote 9, at 124.
16Id.
17 In the case in which canon law was deficient, CIC-1917 c.20 explicitly
authorized the fons suppletorius to be derived, "a legibus latis in similibus; a
generalibusiurisprincipiiscum aequitatecanonicaservatis;a stylo et praxis Curiae
Romanae; a communi constantique sententia doctorum," without mentioning civil
law as a possible source.
B. The Church's Traditionof Recognizing Civil Law
Since the establishment of the Church, there has been a
relationship between canon law and civil law. Beginning in the
fourth century, the Church availed itself to the laws of the state,
which offered significant privileges and protections.' 8 As the
Church continued to thrive, the civil societies within which it
existed, particularly the European nations, developed their own
legal codes. 19 Often finding that its actions had consequences in
civil law under these legal codes, the Church developed an
interest in securing the privileges and protections offered by
such legal codes. Likewise, the Church recognized the need to
adapt the requirements of its legal system to the requirements of
various peoples, and to the demands of diverse times and
circumstances. 20 Hence, throughout the centuries, the Church
has recognized civil law, in some manner and to some degree,
particularly in cases of overlapping jurisdiction.
By canonizing the civil law established for a given territory,
CIC-1983 c.22 expresses the Church's understanding that
ecclesiastical actions often have consequences in civil societies.
CIC-1983 c.22, in particular, reflects the will of the legislator to
give civil effect to matters that are subject to the jurisdiction of
the Church. If CIC-1983 c.22 is interpreted broadly, then civil
effect would be given to all ecclesiastical matters which civil law
may also regulate. If CIC-1983 c.22 is interpreted narrowly,
then civil effect would be given only to those ecclesiastical
matters governed by canons in which reference to civil law is
explicitly mentioned in CIC-1983. CIC-1983 c.1290, which
pertains to the alienation of ecclesiastical goods,21 is one such
canon in which reference to civil law is explicitly mentioned in
CIC- 1983.
18 BRITANNICA, supranote 12, at 149.
19Id.
2 0Id.
21For purposes of this article, the term ecclesiasticalgoods will be used to refer
generally to temporal goods of the Church throughout history, whether such goods
are corporeal (both immovable and movable) or incorporeal, affording due
recognition to the fact that, with the promulgation of CIC-1983 c.1257 § 1, only
temporal goods which pertain to the universal Church, the Apostolic See, particular
churches or other public juridic persons are considered to be ecclesiastical goods.
C. The Nexus between CIC-1983 cc.22 and 1290.
There is a nexus between CIC-1983 cc.22 and 1290. Both of
these canons give expression to the notion that the Church avails
itself to the privileges and protections of civil law. Canon
CIC1983 c. 1290, which preceded CIC- 1983 c.22 in the drafting of the
CIC-1983, builds upon the tradition of its predecessor, CIC-1917
c.1529. CIC-1917 c.1529 provided that applicable civil law was
to be observed in canon law with the same effects in materia
ecclesiastica. When a draft of the revision to CIC-1917 c.1529
was distributed for review by the Pontifical Commission 22 as c.
44 in the 1977 Schema 23, it provided that applicable civil law was
to be observed in canon law with the same effects in re quae
potestati regiminis Ecclesiae subest. CIC-1983 c.1290, as finally
incorporated into the CIC-1983, provides that the applicable civil
law is to be observed in canon law with the same effects quoad
res potestati regiminisEcclesiae subiectas.
In both c.44 of the 1977 Schema and CIC-1983 c.1290, there
is an emphasis on the effects of civil laws with respect to matters
subjected to the power of governance of the Church. 24 The
emphasis is not on the effects of civil laws upon the Church
itself. On the one hand, this suggests that canon law, and not
civil law, is primarily applicable with respect to matters affecting
the Church. On the other hand, civil law is applicable, in a
secondary or auxiliary manner, with respect to matters that are
subject to the governance of the Church. This is certainly
apparent from the exception clause, which limits the general
principle of the canonization of civil law, found in CIC-1917
c.1529, c.44 of the 1977 Schema and CIC-1983 c.1290: nisi juri
divino contrariasint aut aliud lure canonico caveatur.25
Like CIC-1917 c.1529, CIC-1983 c.1290 expresses the will of
the legislator to refer to civil law, specifically in matters
pertaining to contracts and payment obligations. Consequently,
the Church recognizes that, notwithstanding the ecclesiastical
22In the text of this article, for simplicity, the Pontifical Commission for the
Revision of the Code of Canon Law (i.e., PontificiaCommissio Codici Iuris Canonici
Recognoscendo) will be called the Pontifical Commission.
23 In the text of this article, the Schema canonum libri Vde iurepatrimoniali
ecclesiae published by the Pontifical Commission in 1977, will simply be called the
1977 Schema.
24 CIC-1983 c.1290.
25 Id.
effects of such transactions, there are also civil consequences
appurtenant to such transactions. The legislator, however,
places the law of the Church in a position superior to civil law by
articulating two exceptions to the canonization of civil law in
CIC-1983 cc.22 and 1290. By these canons, civil law is canonized
into canon law: (i) insofar as it is not contrary to divine law (i.e.,
either per se or as applied), and (ii) unless something is
otherwise provided in canon law. 26 The first exception rightfully
places divine law in a superior position to civil law, consistent
with the teachings of the Church. The second exception echoes
the principle that the Church, as a societasperfecta,27 does not
depend upon civil laws for its existence. Consequently, CIC- 1983
cc.22 and 1290 give expression to the notion that the Church
avails itself to the privileges and protections of civil law without
compromising its ecclesiastical principles and traditions.
II. CIC-1983 C.1291: THE ALIENATION OF ECCLESIASTICAL GOODS
Reasonable arguments can be made to support the
proposition that the enforcement and satisfaction of a civil
judgment, from ecclesiastical goods which constitute stable
patrimony, is an alienation under canon law. A valid alienation
requires, inter alia,compliance with certain formalities set forth
in CIC-1983 c.1291. CIC-1983 c.1291 must be read in
conjunction with CIC- 1983 c. 1290, which canonizes civil law into
the scheme of canon law dealing in matters "de contractibus"and
"de solutionibus."28 CIC-1983 c.1290 is a part of the scheme of
canons de contractibus ac praesertim de alienatione and
therefore, could be construed to introduce civil law in all matters
concerning alienation in general.
A. The Roots of CIC-1983c. 1291 in Roman Law
CIC-1983 c.1291, rooted in Roman law, has a rather complex
history. Throughout the centuries, beginning in the early
Church in Rome, ecclesiastical goods were treated with special
26 CIC-1983 cc.22 and 1290.
27 PIUS xi, ENCYCLICAL LETTER MORTALiUM ANIMOS, AAS 20 (1928), 5-16,
available at http://www.vatican.va/holy-father/pius-xiencycicals/documents (last
visited Sept. 9, 2003).
28 CIC-1983 c.1290.
consideration. Initially, the alienation of ecclesiastical goods was
generally forbidden, except under certain circumstances. 29 As the
Church developed, burdens were placed upon administrators to
protect and conserve ecclesiastical goods with vigilant care.30 An
understanding of the rich history of CIC-1983 c.1291 provides
considerable guidance for the interpretation of this canon.
In ancient Rome, law and religion, in certain respects, were
not precisely differentiated. 31 In fact, there were many points of
contact between the ius sacrum (i.e., the religious law) and civil
law. 32 Sacred places and things were afforded special
consideration under Roman law well before Christianity was
accepted by the Roman Empire. Ancient Roman religious beliefs
maintained that certain divinities controlled the upper world,
and that places and things dedicated to the worship of these
divinities were sacred. They called such places and things res
sacrae.33 Following the dawn of the age of Constantine, Roman
law applied the concept of res sacrae to Christian places of
worship and preserved the notion that places and things devoted
to divine worship merited special consideration.
A discussion of alienation in early Roman law requires, by
way of background, an understanding of ownership. The concept
of ownership is rooted in the term dominium.34 The term
dominium appears for the first time in the literature at the end
of the Republic (i.e., approximately 27 B.C.). 35 Legal historians
maintain that the term dominium had a very specific meaning in
terms of the law affecting one's rights in property. 36 By the end
of the Republic, to have dominium in property under Roman law
was to have plenapotestas in re, which included the rights: (i) to
use the property in which one had dominium; (ii) to take any
proceeds or profits generated by such property; and, (iii) to
29 CIC-1983 c.1291.
30 d.
3 1 HERBERT F. JOLOWICZ, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN
LAW 86 (University Press 1994) (1972).
32Id.
33 P.R. COLEMAN-NORTON, ROMAN STATE & CHRISTIAN CHURCH: A COLLECTION
OF L3 E4FGRAILTZDOSCCHUUMLEZN, TCSLTAOSSAIC.DA.L 5R3O3M1A1N38LA(LWon3d3o8n-31996(O6)x.ford: Clarendon 1961)
(1946).
35 A. GAUTHIER, INTRODUCTION TO ROMAN LAW FOR STUDENTS IN CANON LAW 78
(199346)S.CHULZ, supranote 34, at 339-40.
dispose of such property freely. 37 However, by this period in
Roman law, there was often a fundamental difference between
the factual holding of property (i.e., possessio) and dominium,
which did not always reside in the same person. In fact, the
rights appurtenant to dominium (i.e., ius utendi fruendi et
abutendi)could be granted to a party, or appropriated by a party
(e.g., a servitude for drainage), who was not the dominus or
owner of a property which was the subject of such rights.38
Consequently, in practice, Roman law permitted the rights
appurtenant to dominium to be alienated independently from,
but subject to, the interest of the dominus. This means that the
dominus could alienate certain rights in a property without
relinquishing ownership of the property. Under Roman law, for
example, the right to use property could be alienated
independently from the right to recover and retain the proceeds
derived from an agricultural enterprise on such property. 39
Even though ownership was considered sacrosanct during
the classical period of Roman law, it is apparent that rights
appurtenant to ownership were not unlimited.40 Furthermore, in
later periods of Roman law, particularly in the fourth and fifth
centuries, the distinction between possessio and dominium
became less clear. 41 During this period, the dominus, as well as
the person in possession of the property of the dominus, were
able to alienate rights in the property to others.42 In addition,
the ownership of property could be limited with regard to the
interests of neighbors as well as to limitations imposed by public
law. Thus, the notion of dominium or ownership became subject
37 p. CUMIN, A MANUAL OF CIVIL LAW 62 ("Dominium est ius utendi,fruendi, et
abutendi,quatenus iuris ratiopatitur.");A. BERGER, TRANSACTIONS OF THE
AME3R8ICCUAMNINP,HsILuOpSrOaPnHoItCeA3L7,SaOtC8IE2T.Y 441 (1953).
39 JOLOWICZ, supra note 31, at 158-59
4 oSCHULZ, supranote 34, at 338; JOLOWICZ, supranote 31, at 158.
41M. BRETONE, STORIA DEL DIRITTO ROMANO 393, n.102 (2000).
42 It is noteworthy that, in Roman law, one who was not the dominus could
alienate property in certain circumstances. Reference to this practice is mentioned
in the Institutes of Justinian. See, e.g., THE INSTITUTES OF JUSTINIAN § 2.8
(Thomas Cooper ed., 1852) ("Accidit aliquand6,ut, qui dominus rei sit, alienarenon
possit: et contr&qui dominus non sit, alienandaerei potestatem habeat."). All
references to the Institutesof Justianianin this study are from the Thomas Cooper
edition. The Institutesof the Justinianwas a manual of law for the Roman Empire,
first published on November 21, 533, having statutory force from December 30, 533.
Id. at vii.
to a liberal interpretation. However, this liberal principle of
ownership was aimed at keeping ownership interests as free as
possible from restrictions on alienation. In that way, real or
personal property could be freely alienated.43
B. Alienation in the History of the Church
There is long-standing recognition of the inviolable right of
the early Church in Rome to hold title to real property under
Roman law. In the beginning of the third century, Christians
began to hold property in a "corporative, properly ecclesiastical,"
manner. 44 Then, after Constantine granted religious liberty to
the Christians in the Roman Empire on June 13, 313, he began
to restore the property, which had previously been confiscated
from the Church in Rome during the reign of Diocletian.
However, immovable goods (e.g., real property) were not
returned by the emperor to individuals or to the universal
Church. Rather, immovable goods were restored to particular
churches under the governance of bishops. 45 Consequently,
estates (i.e., legal interests) in Church property vested in the
particular Church communities under the governance of local
bishops having responsibility for the administration of Church
goods. 46
As early as 374, the Council of Valencia determined that any
sale or donation of ecclesiastical goods by a bishop was invalid,
"absque collaudationeet subscriptione clericorum."47 In 397, c.4
of the Council of Carthage set forth the requirement that: (i)
necessitas nimia must be present in order to alienate
ecclesiastical goods, and (ii) the decision to alienate must be
proposed to the primate of the province, "ut cum statuto numero
episcoporum utrum faciendum sit arbitretur.4"8 Later, Pope Leo
the Great (440-461) instructed the bishops of Sicily that no
bishop may alienate ecclesiastical goods "nisiforte aliquid horum
43 SCHULZ, supranote 34, at 334-37.
44B. FERME, The Temporal Goods of the Church:Some HistoricalNotes and
Reflections, in RENDER UNTO CAESAR: CHURCH PROPERTY IN ROMAN CATHOLIC AND
ANGLICAN CANON LAW 9 (J. Fox ed., 2000).
45 J. GAUDEMET, STORIA DEL DIRITTO CANONICO 128.
4G FERME, supra note 44, at 10; V. De Paolis, Dominio, in C. CORRAL SALVADOR,
ET AL., Nuovo DIZIONARIO DI DIRITTO CANONICO 427 (1993).
47L. CENTURIONI, L'AMMINISTRAZIONE DEI BENI ECCLESIASTICI 85.
48Decretum of Gratian,PartII, C.27, q.4, c.39 [hereinafter C.].
faciat, ut meliora prospiciat, et cum totius cleri tractatu atque
consensus id eligat, quod non sit dubium profuturum ecclesiae."49
As the administration of goods in the particular churches became
more important, in 451, the Council of Calcedon, in c.26,
mandated that every diocese must nominate an economo who
would be obligated to administer the goods of the diocese.50
The Institutes of Justinianconfirms that the principle of res
sacrae was imposed upon the patrimonial system of the early
Church in Rome. This principle held that res sacrae were
dedicated to God's service and that they were not generally
subject to alienation or hypothecation. 51 The res sacrae,
consequently, were treated differently than other property in the
Roman Empire. 52 This is not inconsistent with the Constantinian
notion that an estate (i.e., a legal interest) in Church property
should not vest in particular individuals (e.g., in a bishop) or in
the universal Church, but rather in particular churches under
the governance of bishops. This notion prevailed in the Roman
Empire and is considered to be a precursor to the right of the
Church to acquire, retain, administer and alienate property,
which developed under later European law.5 3
As the Church developed within the Roman Empire,
particular churches began to acquire goods. There was a general
sentiment in the Christian community that these ecclesiastical
goods must be protected and conserved. C.14 of the Council of
Rome of 502 reflected this sentiment by providing that no one,
not even the pope, could alienate an estate of the Church of
Rome.54
During the Middle Ages, the alienation of Church property,
in any manner, whether by transfer for value or by prescription,
was not generally favored. An example of this sentiment is
49 C. 12, q. 2, c.52.
50 Decretumof Gratian,PartI, 89, 4 [hereinafter D.].
5 1 THE INSTITUTES OF JUSTINIAN, supranote 42, at 2.1.8 ("Sacraeres sunt, quae
rit perpontifices Deo consecrataesunt; veluti aedes sacrae,et donaria,quae rit ad
ministeriumDei dedicatasunt; quae etiamper nostramconstitutionemalienariet
obligariprohibuimus,exceptd causd redemptioniscaptivorum.").
52 Id. at 2.1.7 ("Nulliusautem sunt res sacrae,et religiosae,et sanctae:quod enim
divinijurisest, id nullius in bonis est.").
53 Herbert Thurston, PropertyEcclesiastical,in 12 CATHOLIC ENCYCLOPEDIA (W.
G. Kafron trans., 1911), availableat http://www.newadvent.org/cathen/12466a.htm
(last updated June 26, 2003).
54 C.12, q.2, c. 20.
found in the laws of that time governing prescriptive rights.55
Following the reform of Gregory VII (1073-1085), the Church
could obtain prescriptive rights against a member of the laity
within thirty years, but a period of forty years was required in
order for a member of the laity to obtain prescriptive rights
against the Church.5 6 Furthermore, throughout the later Middle
Ages, a notable interest developed in the protection and
conservation of ecclesiastical goods. From the twelfth century
onward, those to whom the care of ecclesiastical goods was
entrusted were considered protectors and defenders of such
ecclesiastical goods.
Later, the concept of alienation continued to be further
refined. As in Roman times, the concept of alienation included
the transfer of plena potestas in re, as well as transfers of lesser
rights or interests in ecclesiastical goods. This expansive sense
of alienation continued to reflect the commercial exigencies of
society. In 1468, Pope Paul II (1464-1471), in the apostolic
constitution Ambitiosae, specified with particularity that
alienation included a wide variety of transactions: simple
transfer of property, mortgaging an interest in property,
granting an interest in property for value, leasing an interest in
property, and granting an interest in land in exchange for
certain services. 57 Ambitiosae had a tremendous impact upon the
canon law governing alienation of ecclesiastical goods. In
particular, Ambitiosae eventually served as the foundation for
the canons governing alienation in the CIC-1917.58
C. Alienation in the CIC-1917
The development of the CIC-1917 reflects the concern of
canonists wishing to maintain a broad interpretation of
55 Prescriptive rights, in this context, are interests in property which may be
transferred and acquired ipso jure, upon the passage of a predetermined period of
time and upon the satisfaction of certain predetermined conditions precedent. The
law of prescription is presently recognized in CIC°1983 cc. 197-98.
56DecretalesD. GregoriiPapaeIX (LiberExtra)in CorpusIuris Canonici2, 26,
cc.35, 74, 6, 8, 9 [hereinafter X.].
Extravagantescommunes in Corpus iuriscanonici 3, 4, 1 [hereinafter Extrav.
com.] ("Si quis autem contra huius nostraeprohibitionisseriem de bonis et rebus
eisdem quicquam alienarepraesumpserit: alienatio,hypotheca, concessio, locatio,
conductioet infeudatiohuismodi, nullius omnino sint roborisvel momenti.").
5 8Thurston, supranote 53, availableat http://www.newadvent.org/cathen/
12466a.htm.
alienation as the universal Church entered the twentieth
century. The transactional environment was becoming more and
more complex, and, if the Church were to avail itself of the
benefits and corresponding risks of the modern business
environment, the law governing the alienation of ecclesiastical
goods needed to embrace a wide variety of transactions.
Canonists, prior to the promulgation of CIC-1917, considered the
transfer of rights and interests in property, as well as the
transfer of possession,5 9 within the ambit of transactions that
constituted alienation. Consequently, canonists during this
period were generally in accord with the notion that alienation
included the transfer of rights or interests which might
constitute less than full ownership in property.
In fact, prior to the promulgation of the CIC-1917, canonists
placed a wide variety of transactions within the scope of
alienation. 60 For example, a transaction, by means of which a
right in tangible or intangible ecclesiastical goods was
transferred, was considered to constitute an alienation. Among
the examples of this type of transaction, canonists included a
donation, a sale, an exchange, an assignment of payment, a
satisfaction of a judgment in a lawsuit, and a negotiated
settlement payment. In addition, a transaction was considered
to constitute an alienation if such transaction anticipated the
possibility of an alienation of ecclesiastical goods in the future.
Among the examples of this type of transaction, canonists
included a pledge of security for a debt, a guarantee, a mortgage,
and the posting of a bond in an arbitration proceeding or a
lawsuit. Furthermore, a transaction, by means of which less
than full dominium in ecclesiastical goods was transferred, was
considered to constitute an alienation. Among the examples of
this type of transaction, canonists included: a usufruct (i.e., the
use and enjoyment in the profit or benefits derived from
something which belongs to another), a servitude (i.e., a partial
interest in real property for a particular purpose, such as a
drainage easement), and a long-term lease.
Canon 1530 of CIC-1917, setting forth the requirements for
the alienation of res ecclesiasticas,falls within Title 28 of Book 3
of CIC-1917, De bonis ecclesiasticis administrandis.
Consequently, alienation was considered to be within the
purview of administration of ecclesiastical goods in CIC-1917.
Title 28 of Book 3 of the CIC-1917 suggested that the following
were subject to alienation: res ecclesiasticas(i.e., temporal goods,
whether corporeal, both immovable and movable, or incorporeal)
(CIC-1917 c.1530), property (CIC-1917 c.1532, § 1), precious
goods (CIC-1917 c.1532 § 1), sacred things (CIC-1917 c. 1539),
and divisible things (CIC-1917 c.1532 § 4). Furthermore, Title
28 of Book 3 of CIC-1917, anticipated, either implicitly or
explicitly, that the following kinds of transactions constituted an
alienation: the pledging of goods, the granting of a loan and the
contracting of a debt (CIC-1917 c.1538 § 1), the sale or exchange
of sacred things (CIC-1917 c.1539), the sale or lease of
immovable goods (CIC-1917 cc.1540 and 1542 § 1), and a
contract for the long-term lease (i.e., an emphyteusis) of
ecclesiastical land (CIC-1917 c. 1541 § 1).
The CIC-1917 also provided numerous expressions which
regulated the protection and conservation of ecclesiastical goods.
Canon 1519 CIC-1917 required the local ordinary to be
sedulously vigilant (i.e., sedulo advigilare) concerning the
administration of all ecclesiastical goods. Canon 1522 of
CIC1917 required administrators of ecclesiastical goods to prepare
an accurate and detailed inventory, including valuation, of all
ecclesiastical goods subject to their care. Canon 1523 of
CIC1917 required administrators, as paterfamilias,of ecclesiastical
goods to vigilantly exercise a duty of care with respect to such
goods. Canon 1530 of CIC-1917 imposed certain obligations upon
administrators to preserve ecclesiastical goods and to exercise
caution in order to avoid damage to the Church in the alienation
of ecclesiastical goods. Canon 1542 § 2 of CIC-1917 required the
administrator to obtain security for the repayment and to fulfill
certain conditions with respect to a long-term lease. The
protection and conservation of ecclesiastical goods was a
significant and recurring theme in Title 28 of Book 3 of the
CIC1917.
From this survey of the CIC-1917, it is apparent that the
legislator considered the traditions of Roman law and the Corpus
Iuris Canonici in promulgating the canons pertaining to
alienation. In the CIC-1917, it is apparent that broad ranges of
goods were subject to alienation, a variety of transactions fell
within the context of alienation, and obligations of care were
imposed upon administrators to protect and conserve
ecclesiastical goods and their respective values. Notwithstanding
the fact that the alienation of ecclesiastical goods was merely
considered to be an element of the overall administration of
ecclesiastical goods in CIC-1917, CIC-1917 established a
fundamental understanding of alienation in the modern era. Of
no less importance, CIC-1917 c. 726 clearly expressed the notion
that the things regulated by Book 3 of the CIC-1917, De rebus,
were the means that the Church used to pursue its purpose. 61
Book 3 of the CIC-1917 presented a comprehensive
understanding that the alienation of ecclesiastical goods
deserved to be handled with great caution and protection in
order to avoid damage to the Church and the frustration of its
purpose.
D. The Development of Canon 1291 of CIC-1983
The earliest published draft of CIC-1983 c.1291 is c.36 of the
1977 Schema.62 Canon 36 of the 1977 Schema is derived from
CIC-1917 c.1530 § 1. Both canons set forth the requirements for
a valid alienation. CIC-1917 c.1530 §1 provides the requisites
for the alienation of certain res ecclesiasticas quae servando
servari possunt, adopting that language from the apostolic
constitution Ambitiosae promulgated by Pope Paul II in 1468.63
Under the CIC-1917, res ecclesiasticas quae servando servari
possunt were those ecclesiastical goods which, by virtue of their
nature, function or ultimate ends, were able to be, and needed to
be, protected and conserved. Conversely, such goods could not be
alienated and, indeed, administrators of such goods were obliged
not to alienate them, except under certain prescribed
circumstances. 64
61"Res de quibus in hoc libro agiturquaeque totidem media sunt ad Ecclesiae
finem consequendum, aliaesunt spirtuales,aliaetemporales, aliae mixtae." The
word purpose is used throughout this study as the English translation for the Latin
wor6d2 fPiOnNisTIaFnIdCIiAtsCdOeMriMvaIStiSvIeOs.CODICI IURIS CANONICI RECOGNOSCENDO, Schema
canonum Libri V de iurepatrimonialiecclesiae 17 ("Ad alienandabona quae
personae iuridicaeecclesiasticaeex legitima assignationepatrimoniumstabile
constituunt,requiriturlicentia auctoritatisad normam iuris competentis, sine qua
alienatioinvalidaest.").
6 3 Extrav. com., supranote 57, at 3, 4, 1.
64Commentators indicate that the phrase res ecclesiasticasquaeservando servari
possunt is not easy to translate. The translation used in this description of res
While the phrase res ecclesiasticas quae servando servari
possunt does not appear in the 1977 Schema, the intent of this
phrase is retained and embodied in the new term patrimonium
stabile in c. 36 of the 1977 Schema. The term patrimonium
stabile was considered to be more comprehensible and precise
than its predecessor, res ecclesiasticas quae servando servari
possunt. Furthermore, commentators suggest that this new
term was introduced in the 1977 Schema to address the reality of
the modern economy of the twentieth century, which was
developing far differently from the economies of the past.65
This change is significant from the point of view that the
concept res ecclesiasticas quae servando servari possunt is a
standard or criterion, although perhaps vague, that could have
been applied to certain ecclesiastical goods. The concept
patrimonium stabile, on the other hand, is a category within
which certain ecclesiastical goods may be placed. Neither the
kinds of ecclesiastical goods that may be placed into the category
of patrimonium stabile, nor the characteristics of such goods, are
identified in the 1977 Schema.
Canon 36 of the 1977 Schema proposed other substantive
changes to CIC-1917 c.1530 § 1. Essentially, CIC-1917 c.1530 §
1 set forth three requirements for the alienation of res
ecclesiasticas quae servando servari possunt: (i) a written
estimate of the value prepared by an expert; (ii) just cause; and
(iii) permission from the legitimate Superior, without which the
alienation was considered to be invalid. Canon 36 of the 1977
Schema, in addition to proposing the new term patrimonium
stabile, in place of res ecclesiasticas quae servando servari
possunt, proposed that permission from competent authority,
instead of permission from the legitimate superior, should be
required in order to achieve a valid alienation. Furthermore, it
proposed that the other two requirements for alienation
previously found in CIC-1917 c.1530 § 1 (i.e., just cause and a
written estimate of value prepared by an expert) be moved to
c.38 of the 1977 Schema.
In 1980, a noteworthy revision to c.36 of the 1977 Schema
was being considered. This revision appears in c. 1242 of the 1980
ecclesiasticasquaeservandoservaripossunt is derived from V. De Paolis,
Alienazione, in DE PAOLIS & GHIRLANDA, supranote 46, at 9.
65De Paolis, supranote 64, at 9.
Schema codicis iuris canonici6.6 Canon 36 of the 1977 Schema
required the permission of competent authority in order to
alienate goods that were legitimately assigned to stable
patrimony. Canon 1242 of the 1980 Schema codicis iuris
canonici required permission from competent authority in order
to alienate goods which were legitimately assigned to stable
patrimony, and which had a value in excess of the sum defined by
law. This addition does not obviate the need to understand the
meaning of the term patrimonium stabile, by simply establishing
a threshold, in terms of value, to identify those alienations that
require permission from competent authority. However, this
addition does suggest that there is a certain amount of tolerable
intrusion into, or damage to, the stable patrimony of a public
juridic person, before the requirement of permission from
competent authority is to be invoked. This range of tolerance is
not a lacuna in the law. Rather, it is an expression of the
application of the principle of subsidiarity which is characteristic
of the CIC-1983.67
Canon 1242 of the 1980 Schema codicis iuris canonici was
later modified by c. 1291 of the 1982 Codex iuris canonicischema
novissimum. 68 The only significant change to c.1242 of the 1980
Schema codicis iuris canonici, as reflected in c.1291 of the 1982
Codex iuris canonici schema novissimum, is introduction of the
notion of a public juridic person. This introduction presumably
reflects a change to conform c.1291 of the 1982 Codex iuris
canonici schema novissimum to other provisions of that schema
that pertain to the new concept of public juridic person. This
66 PONTIFICIA COMMISSIO CODICI IURIS CANONICI RECOGNOSCENDO, Schema
codicisiuris canonici, 277 ("Ad valide alienandabona quaepersonaeiuridicae
publicae ex legitima assignationepatrimoniumstabileconstituunt et quorum valor
summam jure definitam excedit, requiriturlicentiaauctoritatisad normam iuris
competentis.").
67 A. Perlasca, Libro VI Beni Temporali Della Chiesa, in CODICE DI DIRITTO
CANONIco COMMENTATO 984; PONTIFICIA COMMISSIO CODICI IURIS CANONICI
RECOGNOSCENDO, Acta Commissionis, Opera consultorum in apparandiscanonum
schematibus,De iure patrimonialeEcclesiae,in Communicationes5, 100 (1973);
PONTIFICIA COMMISSIO CODICI IURIS CANONICI RECOGNOSCENDO, Acta
Commissionis, Transmissio schematum canonum consultationiscausa, Liber
qui6n8tPuOs,NDTeIFiIuCrIAepCaOtrMiMmIoSSnIiOalCiEOcDcIlCeIsiIaUeR,IinS CCAoNmOmNuICnIicRaEtCioOnGeNsO9,SC26E9N D(1O9,77C).odex iuris
canonici schema novissimum, 225 ("Ad valide alienandabona, quae personae
iuridicaepublicaeex legitimaassignationepatrimoniumstabile constituunt et
quorum valor summam iure definitam excedit, requiriturlicentiaauctoritatisad
normam iuris competentis.").
change, however, is not significant for purposes of this study.
Canon 1291 CIC-1983 is identical to c.1291 of the 1982
Codex iuris canonici schema novissimum. As previously
discussed in this article, there are significant differences
between c.1291 of the 1982 Codex iuris canonici schema
novissimum and CIC-1917 c.1520. Those differences remain
between CIC-1917 c.1530 and CIC-1983 c.1291. However, both
of these canons express recognition that a public juridic person
must have the ecclesiastical goods necessary to fulfill its ecclesial
mission and to pursue its ultimate purpose. 69
The two most obvious differences between CIC-1917 and
CIC-1983 c.1291, for purposes of this study, are that CIC-1983
c.1291 introduces: (i) the term patrimonium stabile and (ii) the
requirement to obtain permission from competent authority in
the event that the ecclesiastical goods subject to alienation are
allocated to the stable patrimony of the public juridic person,
and the value of such goods exceeds the sum determined by law.
Previously, under CIC-1917 c.1530, permission from the
legitimate superior was required for any alienation of res
ecclesiasticas quae servando servari possunt, and permission
from the Holy See was required in the event that the value of
such goods exceeded 30,000 lire or francs.70 Consequently, two
threshold considerations for a proper interpretation of CIC-1983
c.1291 are: (i) the constitutive elements of stable patrimony of a
public juridic person and the nature of the allocation of
ecclesiastical goods to the stable patrimony, and (ii) the value of
such ecclesiastical goods, and the amount beyond which
permission from the Holy See is required for a valid alienation.
These threshold considerations merit further discussion, because
69 De Paolis, supra note 45, at 9; See also C.12, c.23, q.1 and PO 17, which
enumerate the purposes for which the Church is permitted to own ecclesiastical
goods, which include: the organization of divine worship, the provision of decent
support for the clergy, and the exercise of works of the apostolate and of charity,
espe7c0ially for the benefit of those in need.
This standard was applied to the universal Church under the CIC-1917. For
comparison purposes, the present value of 30,000 (1917) Italian lire in U.S. dollars
would be approximately $56,000.00, and the present value of 30,000 (1917) French
francs in U.S. dollars is approximately $73,021.00. The present maximum sum, in
U.S. dollars, established pursuant to CIC-83 c.1292 by the U.S. Conference of
Catholic Bishops, is $3,000,000.00. The spread between $56,000.00 and
$3,000,000.00 represents a practical example of the application of the principle of
subsidiarity, by means of which public juridic persons enjoy greater autonomy
under the CIC-1983.
the stable patrimony of a public juridic person is considered to be
the means by which such public juridic person assures its
subsistence, as well as its ability to pursue its purpose and to
fulfill its ecclesial mission. 1
E. The Threshold Considerationsof Canon 1291
Stable patrimony is the economic means by which a public
juridic person is rendered self-sufficient in order to be able to
perform its ecclesial mission, both in the present and in the
future. Consequently, there is a tendency in canon law to
protect and conserve stable patrimony.7 2 In addition, the concept
of valuation bears mention as a canonical construct for
determining: (i) whether or not stable patrimony is deemed to be
damaged or impaired and (ii) the level of permission required in
order to effectuate a valid alienation.
Although the term patrimoniumstabile was not used in the
CIC-1917, the concept had been previously introduced in similar
words as early as 1851 by Pope Pius IX in his allocution, Quibus
luctuosissimis.73 Furthermore, some of the commentators of the
CIC-1917 introduced concepts strikingly similar to patrimonium
stabile in their writings.7 4 These concepts convey the recognition
of a need for the Church to maintain a certain core of
patrimonial goods which merit special protection and
conservation, and which should not be alienated, unless subject
to reasonable controls.
A phrase embodying a concept similar to patrimonium
stabile is found in CIC-1917 c.1530 § 1. Canon 1530 § 1 of
CIC1917 applied a particular standard to distinguish goods which
could be alienated from goods which could not and must not be
alienated, except under certain circumstances. As previously
mentioned, this standard was embodied in the phrase res
71 See V. De Paolis, supranote 46, at 10; see also CIC-1983 c.1254, § 2.
72 CIC-1983 c.1291.
73 P. GASPARRI, ed., Codicis iuris canonicifontes, II, 863 ("Omni enim studio et
contentione vindicandum ac tuendum curavimus ius ... acquirendiscilicet et
possidendiquaecumque bona stabilia").
7171 A. VERMEERSCH & J. CRUESEN, EPITOME IURIS CANONICI CUM
COMMENTARIIS II, 596 ("Prose praeferendaest collocatio in bonis stabilibus
frugiferis, utpote quae de maiorem securitatemet magis alienasit ab omni specie
negotiationisclericis vetitae."); G. VROMANT, DE BONIS ECCLESIAE TEMPORALIBUS
248, n. 5 ("Extinctioaerisalieniaequiparaturalienationiin casu tantum quo solutio
fit ex bonis quae ad patrimoniumseu capitalestabilepertinent").
ecclesiasticas quae servando servari possunt.75 By using this
standard, the CIC-1917 implied that there were certain res
ecclesiasticas that merited special protection, and for that
reason, certain precautions were established to preserve them.
The rationale behind the protection of such goods was to assure a
certain level of financial stability for the moral person 76 which
owned such goods, so that such moral person would be able to
maintain its economic self-sufficiency in order to fulfill its
ecclesial mission.7 7 Ultimately, this concept was introduced into
the CIC-1983, using the term patrimoniumstabile.
While the term patrimonium stabile is not defined in the
CIC-1983, some commentators tend to claim that only those
immovable goods that constitute the economic base of a public
juridic person, such as real property and certain restricted
investments, constitute a part of the stable patrimony. 78 Other
commentators agree that both immovable and movable goods
(i.e., both real and personal property) may constitute a part of
the stable patrimony of a public juridic person.7 9 These
commentators distinguish working capital, which is not
considered to be stable patrimony, from fixed capital, not
anticipated to be liquidated to pay current accounts, which is
considered to be stable patrimony. The view that stable
patrimony includes both immovable and movable property is
consistent with the view held by the CIC-1917 regarding res
ecclesiasticas quae servando servari possunt. The fact that the
term patrimonium stabile is not explicitly defined in the
CIC1983 allows broad discretion to a public juridic person in
determining which ecclesiastical goods constitute stable
patrimony.
One notable feature of CIC-1983 c.1291 is that the
ecclesiastical goods which constitute the stable patrimony of a
75 The alienation of res ecclesiasticasquae servando servaripossunt had been
historically prohibited. "[O]mnium rerum et bonum ecclesiasticorumalienationem,
per quod ipsorum dominium transfertur..q.uae servando servarinon possunt ...
prohibemusfieri."
76The term moralperson is used in this instance, because the term publicjuridic
person did not exist in the CIC-1917.
77J. SCHOUPPE, ELEMENTI DI DIRITTO PATRIMONIALE CANONICO 131 (1997); L.
CEN7T8UCREINOTNUI,RILO'ANMI, MsIuNpISrTaRnAoZteIO7N7E, aDtE9I1BENI ECCLESIASTICI 90 (1996).
79F.AZNAR GIL, LA ADMINISTRACION DE LOS BIENES TEMPORALES DE LA
IGLESIA, 408 (1993); ADAM MAIDA & NICHOLAS CAFARDI, CHURCH PROPERTY,
CHURCH FINANCES, AND CHURCH-RELATED CORPORATIONS, 313, 327 (1984).
public juridic person must be allocated as such, ex legitima
assignatione8.0 In order to understand the meaning of the
phrase ex legitima assignatione,reference may be made to other
places in the CIC-1983 where derivative forms of the word
assignatio are used. 81 In each of the places in the CIC-1983
where derivative forms of the word assignatio are used, the
context suggests that an assignatio is to be, or would have to
have been, made by virtue of a juridic act having been placed
with the formal requisites set forth in CIC-1983 c. 124.
Notwithstanding this analysis, a reasonable argument can
be made to support the proposition that the allocation of
ecclesiastical goods to the stable patrimony of a public juridic
person, ex legitima assignatione, could result implicitly. This
argument presupposes that a public juridic person, constituted
pursuant to CIC-1983 c.114 § 1, pursues a useful purpose and
has the means foreseen to be sufficient to achieve that purpose
pursuant to CIC-1983 c.114 § 3. The minimum resources
foreseen to be sufficient to achieve the purpose for which the
public juridic person was constituted are, by their nature, part of
the stable patrimony of such public juridic person. 82
Consequently, such resources may become part of the stable
patrimony of such public juridic person ex legitima assignatione
implicitly as a result of other acts.83
If an explicit formal act were always necessary to allocate
ecclesiastical goods to the stable patrimony of a public juridic
person, CIC-1983 c.1291 would offer little protection to
ecclesiastical goods which form the economic foundation of a
public juridic person. In fact, such ecclesiastical goods, which, by
reason of neglect, bad faith or inadvertence, were never formally
allocated to the stable patrimony of a public juridic person,
would have no protection under CIC-1983 c.1291. Such a result
would not seem to be consistent with the intent of the legislator
80CIC-1983 c.1291.
81CIC-1983 cc.688, § 2, 691 § 2, 1746.
82 CIC-1983 c.1254, § 1 provides, in relevant part: "Ecclesiacatholicabona
temporaliaiure nativo ... valet ad fines sibi propriosprosequendos."The fines
referenced CIC-1983 in c.1254 § 1 are more explicitly identified in CIC-1983 c.1254
§ 2: "Finesvero propriiprecipue sunt: cultus divinus ordinandus,honesta cleri
aliorumque ministorum sustentatioprocuranda,opera sacriapostolatuset caritatis,
praesertimergaegenos, exercenda."
83 De Paolis, supra note 64 at 10; PERLASCA, supra note 67, at 1017.
in promoting the protection and conservation of the stable
patrimony of a public juridic person, which is clearly reflected in
CIC-1983 cc. 114 § 3, 1291 and 1295. Furthermore, such a result
would also be contrary to more than 500 years of canonical
tradition founded upon Pope Paul II's apostolic constitution
Ambitiosae8. 4 Consequently, the phrase ex legitima assignatione
should be viewed as a condition precedent to the allocation of
ecclesiastical goods to the stable patrimony of a public juridic
person. However, this condition precedent may be satisfied
implicitly by virtue of the nature, function or ultimate ends of
the ecclesiastical goods under consideration. Any other
construction of CIC- 1983 c. 1291 would frustrate the intent of the
legislator and could produce an absurd result.
Canon 1291 of CIC-1983 requires permission from
competent authority for an alienation when the ecclesiastical
goods to be alienated: (i) constitute stable patrimony, and (ii)
have a value which exceeds the sum determined by law. Canon
1292 § 1 of CIC-1983 authorizes and obligates each conference of
bishops to determine such sum for its region. In practice, a
conference of bishops is obligated to establish a range, defined by
a minimum sum and a maximum sum, within which the
permission of competent authority is required in the event of an
alienation under CIC-1983 c.1291. Canon 1292 § 2 of CIC-1983
provides that permission of the Holy See is required to validly
alienate ecclesiastical goods, when the value of such goods
exceeds the maximum sum established by the conference of
bishops for its region. This requirement appears to be in
addition to the requirement of permission from competent
authority set forth in CIC-1983 c.1291.
The value of the ecclesiastical goods to be alienated is not
determinative of whether such goods constitute stable
patrimony.85 Rather, such value is an index that is used in the
CIC-1983 to determine the levels of approval that are required in
order to achieve a valid alienation, thereby fostering the guiding
principle of subsidiarity of the CIC-'1983.8 6 If the value of such
goods is equal to, or less than, the sum established by the
conference of bishops, then the public juridic person may validly
alienate such goods, without further permission. Pursuant to c.
1291 CIC-1983, if the value of such goods exceeds the minimum
sum established by the conference of bishops, but is equal to, or
less than, the maximum sum established by the conference of
bishops, then permission to alienate is required from competent
authority. Pursuant to c.1292 § 2 CIC-1983, if the value of such
goods exceeds the maximum sum established by the conference
of bishops, then, in addition to permission of competent
authority, permission from the Holy See is also required to
complete a valid alienation. Consequently, this scheme (i)
respects the principle of subsidiarity, by linking levels of
permission to a measured scale of value, and (ii) expresses the
legislator's intent to protect and conserve stable patrimony, by
establishing a hierarchical approval process.
III. ALIUD IURE CANONICO CAVEATUR?
As previously mentioned, CIC-1983 c.22 and the
corresponding canon pertaining to alienation, CIC-1983 c.1290,
offer two general exceptions to the canonization of civil law. The
first exception requires that the civil law under
considerationshould not be contrary to divine law. The second exception
requires that reference to civil law should not be made if
something is otherwise provided in canon law, presumably which
would militate against the application of the particular civil law
in a particular context.
In the context of alienation, several canons militate against
the application of a civil law, which would have the effect of
transferring, depleting or otherwise diminishing the stable
patrimony of a public juridic person.8 7 The tradition and
principles of canon law suggest that the stable patrimony of a
public juridic person is essential to the self-sufficiency and
subsistence of such public juridic person. This position is
crystallized in cc. 114 § 3 and 116 § 1 of CIC-1983. Canon 116 §
of 1 CIC-1983 provides that a public juridic person fulfills a
proper function entrusted to it for the common good. Canon 114
of § 3 of CIC-1983 provides that juridic personality is not to be
conferred upon an aggregate of persons unless such aggregate of
persons pursues a truly useful purpose and, omnibus perpensis,
mediis gaudent quae sufficere posse praevidentur ad finem
praestitutum assequendum. These requirements for the
conferral of juridic personality emphasize the necessity of useful
purpose and the means required to pursue such purpose. The
means required to pursue such purpose are found in both
spiritual and temporal goods.
Certain temporal goods, designated as stable patrimony, are
given special consideration in CIC-1983 cc.1285, 1292 § 2 and
1295. Canon 1285 of CIC-1983 provides, by negative implication,
that donations for purposes of piety or Christian charity from
movable goods cannot be made within the limits of ordinary
administration if such movable goods constitute stable
patrimony. This canon suggests that stable patrimony requires a
certain degree of protection and conservation. Canon 1295 of
CIC-1983 subjects any transaction, in which the patrimonial
condition of a public juridic person peior fieri possit, to the
formalities for alienation set forth in CIC-1983 c.1291, and other
canons. Finally, CIC-1983 c. 1292 § 2 requires the permission of
the Holy See for a valid alienation, in addition to the permission
required under CIC-1983 c. 1291, if the value of the ecclesiastical
goods constituting stable patrimony, which are to be alienated,
exceeds the maximum sum determined by law.
The principle which underlies the strong desire of the
legislator to protect and conserve the stable patrimony of a
public juridic person derives from the desire to advance the
constitutive element of such public juridic person: its truly useful
purpose. The pursuit of this purpose is the ecclesial mission of
the public juridic person. Consequently, there is a relationship
between stable patrimony and ecclesial mission.
CONCLUSION
Canon 22 of CIC-1983 canonizes civil law, subject to certain
exceptions. Canon 1291 of CIC-1983 sets forth the formalities
for the alienation of ecclesiastical goods constituting stable
patrimony, having a value in excess of the minimum amount
determined by law. Indeed, the principles and traditions of
canon law support the proposition that ecclesiastical goods,
which constitute stable patrimony of a public juridic person, are
to be protected and conserved, notwithstanding any requirement
of civil law which would operate to divest such public juridic
person of all, or a part, of its stable patrimony, and thereby
constitute an alienation.
The principles and traditions in canon law identified in this
article provide a foundation which may be used to construct a
persuasive argument under the First Amendment of the United
States Constitution to support the proposition that the stable
patrimony of a public juridic person should not be available for
the purpose of satisfying civil judgments. It is relatively futile to
argue that a public juridic person should not be subject to civil
liability under the Free Exercise Clause of the First Amendment
to the United States Constitution. However, arguments that
assert that the stable patrimony of a public juridic person must
be conserved and protected from transfer or liquidation, for the
purpose of satisfying a civil judgment, are worthy of
consideration. This is particularly the case in view of the fact
that the stable patrimony of a public juridic person is the
economic foundation by virtue of which the public juridic person
to able to fulfill its ecclesial mission in the present and in the
future. The Free Exercise Clause of the First Amendment of the
United States Constitution has been interpreted not as a passive
expression of the mere tolerance of religious freedom in the
United States, but as an attitude of the founding fathers of our
nation, which allows religions to flourish.88
88See Zorach v. Clauson, 343 U.S. 306, 313 (1952). The Supreme Court found:
We are a religious people whose institutions presuppose a
Supreme Being. We guarantee the freedom to worship as one
chooses. We make room for as wide a variety of beliefs and creeds
as the spiritual needs of man deem necessary. We sponsor an
attitude on the part of government that shows no partiality to any
one group and that lets each flourish according to the zeal of its
adherents and the appeal of its dogma.
Id. (emphasis added).