Ecclesiastical Property

ECCLESIASTICAL PROPERTY. - This is the name given to temporal goods (whether corporeal, such as movable and immovable property, or incorporeal, such as rights, actions, obligations, servitudes) that belong to the universal Church or to a moral person under ecclesiastical law. These ecclesiastical goods are called sacred if they are applied to divine worship by blessing or consecration; precious, if they have notable artistic, historical, or material value (CIC, can. 1498, §§ 1 and 2).

I. HISTORY

1. Ecclesiastical property under the Roman Empire

Our information about the economic and legal life of the Christian communities during the first three centuries is very imperfect. The most important among them, and particularly Rome, were able from the very beginning of their existence to dispose of sums in favor of the poor, prisoners and the persecuted, and could assist communities in need. The places where the faithful gathered were perhaps, at first, rooms placed at their disposal by private owners or even taken on lease, as we know St. Paul did; and it may be that they were the property of the Church, but entrusted in a fiduciary capacity to some private person. The situation had already changed by the 3rd century. The tituli that began to arise in Rome were by then the property of the Church, as was the case with the residence of the bishop of Antioch. Moreover, the persecuting edicts of Diocletian provided for the confiscation of possessions, archives and books. With the Constantinian edict of 313 and that of 321, Roman legislation recognized the Church's right to possess and to inherit, and the ecclesiastical patrimony soon increased through gifts from emperors and private individuals. In particular the Roman Church succeeded in building up a huge patrimony with holdings situated in the various regions of the Empire. An analogous situation is found for the other episcopal sees.

2. Ecclesiastical property from the barbarian invasions to the end of the Middle Ages

The Germanic invasions and later the disputes that arose between the Roman Church and the Eastern Empire, and the occupation of Africa and Sicily by the Arabs, caused enormous damage to those patrimonies, but afterward, once the Germans had become Catholics, sovereigns and private individuals gave vast properties back to the Church. Numerous monasteries were founded both in the Frankish kingdom and in the Lombard kingdom: suffice it to recall, as regards the latter, the abbeys of Montecassino, Farfa, St. Salvator on Monte Amiata, Cava dei Tirreni, Nonantola, Bobbio and many other cloisters amply endowed by kings, dukes, or wealthy Lombard nobles. These also bestowed conspicuous properties on the female monasteries they founded. In Byzantine Italy, after Byzantine domination extended there (867-1071), many Basilian monasteries also flourished, and other monastic institutions were founded and endowed later by the Norman princes, after these, having driven out the Arabs and Byzantines, had established a powerful state in southern Italy.

Many donations were then made to such institutions by private individuals, especially after donations mortis causa were admitted by Lombard legislation, if made to benefit the soul. These donations multiplied after the Franks descended into Italy with Charlemagne, thus increasing the ecclesiastical patrimonies.

In a particular condition, from the patrimonial point of view, were the religious institutions that had been founded by kings or princes or that had come to them as a result of donations or confiscations. These institutions were considered as regii iuris and their properties found themselves in a hybrid condition: the protection that the Sovereign exercised over them tended to be confused with a right of ownership, while ecclesiastical authors, such as, for example, the famous archbishop Hincmar of Reims, maintained that it was not a right of such a nature as to allow the king to dispose of such institutions and their properties at his pleasure and against reason. There were then the numerous churches that, both in Italy and outside the peninsula, had been founded by private individuals who had endowed them and claimed to be able to dispose of them as of their own property, appointing the priests chosen as a rule from among their own household. For these institutions there was a constant and patient action by the ecclesiastical authority which, while on the one hand it sought to encourage such pious foundations, on the other nevertheless succeeded in reducing them little by little under the authority of the bishops.

The patrimonies of the churches that stood under the protection of the king enjoyed the same privileges as the properties of the royal patrimony and therefore benefited from a special jurisdiction before the king's tribunal and, later, beginning with the reign of Louis the Pious, came into possession of the emunitas, which protected them from the exactions of state taxes, and excluded from their sphere the public officials who could not exercise any act of coercion there. Such privileges, which in the most ancient times belonged only to ecclesiastics regii iuris, were then extended little by little also to those of common law. The oldest among them was the one granted by Charlemagne in 792 to the church of Aquileia; later all episcopal sees were endowed with extensive immunitary privileges for their lands: typical of these is the concession made by the emperor Charles the Fat to the church of Arezzo on 15 February 882. The principal monasteries too were endowed with similar privileges that created true immunitary islands within the territory of the State, since the inhabitants were withdrawn from the ordinary judges, and were not subject to taxes or to military service.

Holders of ecclesiastical property of common law from the most ancient times were the bishops, but later the juridical and economic individuality of the individual churches began to assert itself little by little, both because of the liberality of private individuals toward them, and because the bishops themselves assigned to the individual rectors of such institutions a part of the revenues of the episcopal see. Already they could not interfere in the properties donated to these churches, when the donors had excluded it, and this according to decisions of councils (such as that of Arles of 452); this respect for the will of the donors became an undisputed rule.

On the other hand, according to the provisions issued toward the end of the same century by Pope Gelasius I, the bishops were to divide the revenues deriving from the faithful into various parts, assigning one to the individual churches of the diocese, one to the clergy and one to charity. They ended by assigning to their dependent churches also a part of other revenues and the enjoyment of determined properties. This autonomous patrimonial position of the various churches, however, arose only in the 7th and 8th centuries.

In the feudal age the ecclesiastical patrimony suffered many and grave damages, since the secularizations of such properties increased, having begun with the concessions made of them by the Carolingians verbo regis to their vassals: concessions of which many were made in Italy through the action, especially, of Louis the son of Charlemagne, of Lothair his nephew, and of the other later descendants of the same house. It is not settled whether such vassals were considered as royal, as is the opinion of the French historian Lot, or whether they should be regarded as dependent on the bishops or abbots from whose properties their benefices had been formed, as Lesne holds. The first opinion seems today to prevail.

The interference of the Roman-German emperors in the properties of the church culminated with the house of Saxony (961-1024). In this period they in fact appointed the bishops, even if palliating such appointments with fictitious canonical elections, invested them with the jurisdictions granted to them and, very often, made them docile instruments of their policy. This had vast repercussions on the ecclesiastical patrimony, because the bishops, having thus become great lords of the empire, organized a feudality of their own endowing it with ecclesiastical properties, and the most powerful abbeys did the same. Beside every bishop there stood, from Carolingian times, an advocate who exercised criminal jurisdiction in the name of the prelate, often led his militias in warlike actions, and collected for all this important tributes from the bishop's dependents.

The contamination of the ecclesiastical patrimonial complex with the fief brought about very serious consequences. Lay lords invested with ecclesiastical property made it their inheritance and regarded the churches included in it as feudal property, appropriating the tithes and other revenues: this led the Lateran Council of 1179 to prohibit the enfeoffment of tithes. On the other hand, already a century earlier, in the Council held by Urban II at Clermont (1095), the fathers had forbidden further concessions of fiefs made to the detriment of the ecclesiastical patrimony. The harm, however, was already done and, in reality, the property of episcopal churches and of powerful abbeys remained for the most part encumbered with feudal ties: moreover, the powerful ecclesiastical advocates continued their aims of establishing principalities for themselves to the detriment of the bodies they were supposed to protect. Thus it happened with the Habsburgs for the churches of Trent and Bressanone, and the same would probably have happened with the patriarchate of Aquileia at the hands of those same princes as heirs of the counts of Gorizia, advocates of that church, had Venice not taken possession of Friuli in 1420.

Nevertheless, despite these losses caused by enfeoffments, the ecclesiastical patrimony, continually fed by the liberality of the faithful, always remained substantial. Its organization, which was of such great importance for the economic and legal evolution of the Middle Ages, is worthy of study.

The ordering of ecclesiastical property is based on two profoundly distinct types. One is formed by that belonging to individual parish churches and autonomous churches, the other by the great complexes of property belonging to wealthy bishoprics and to the best-endowed monasteries. Between these two extremes there are then infinite varieties.

The first type required a very simple administration, since it usually involved a few lands that constituted the ecclesiastical masso or maso, whose revenues, together with the portion of tithes and of the altar revenues belonging to the rector of the church, gave him the means to sustain his life. These were properties that the emperor Louis the Pious had already declared free from every imposition or service in the ecclesiastical capitulary of 818-19, chap. 10. Set against this simple structure is the organization of the great patrimonies. They were divided, as a rule, into three parts: one of them was cultivated directly by the owning body by means of serfs or of labor to which the coloni, the aldiones or even the leaseholders were obliged. Such works were overseen by a steward under the name of azionario or villico. The second part was divided into mansi, tracts of land of variable extent but such that they could be cultivated by a family of peasants. These were sometimes serfs called casati because they had a dwelling attached to the mansus, or semi-free men such as the aldiones, or even free men who had with the religious body a lease contract called a "livello." Sometimes these cultivators were craftsmen, and instead of being obliged to give a part of the harvests to the owner, they gave a certain number of days of labor in the capacity of joiners, smiths, carpenters and others to the estate which, according to the medieval system, tended to be self-sufficient. The third part consisted of those lands that had no economic ties with the administration, such as those given in fief, or had only very mild ones, such as other lands granted to persons who in one way or another had merited the favor of the bishop or the abbot and paid the body in general only a modest quit-rent in money. In general the ecclesiastical administration treated its dependents with great mildness. Even serfs, within the framework of the great property, could dispose of the goods they enjoyed by acts inter vivos or by last will; leasehold or emphyteutic concessions were renewed for generations and generations, with the payment of a light canon, so that, after much time had passed, the leaseholder or emphyteuta was regarded as the true owner and the rights of the granting body faded into a simple quit-rent.

The vastness of the properties of the great episcopal churches and of the rich abbeys aroused here and there in Christian Europe reactions that became exacerbated in the heretical currents of the 11th-13th centuries. Theories were asserted that denied the church the right to possess and would have wished clerics to earn their living by manual labor. The policy of the communes did not adhere to these doctrines, but it often placed limits on the excessive expansion of ecclesiastical property, held to be harmful to the economy and above all to municipal finances, given the tax immunities it enjoyed. A similar policy was embraced also by the kings of Sicily, who forbade the sale or donation to religious bodies of allodial or "burgensatic" lands. Of particular importance on this subject was the Venetian legislation, which imposed on religious bodies that had received immovable ecclesiastical property by donation or by testament the obligation to sell it, devoting the proceeds to the purposes most intended by the benefactors. Such laws served as a model for those of other states and in some way foreshadowed the reforms carried out by princes in the 18th century.

3. The civil legislations of recent centuries

It cannot be forgotten that if the legislation of the Italian states placed here and there certain limits on ecclesiastical properties, elsewhere the establishment of the various Protestant confessions in various states beyond the Alps caused the annihilation of countless ecclesiastical bodies and the confiscation of their patrimonies.

As for the French Revolution, it was a whirlwind that for a short time swept away churches, religious orders, ecclesiastical patrimonies. The Napoleonic government, which constituted its epilogue, remedied in some part the acts of the preceding legislation, and although it suppressed various religious Orders and many parishes and restricted the number of seminarians, it nevertheless assigned to bishoprics, chapters, seminaries and parish priests a suitable endowment from the national properties and restored to the surviving religious orders the administration of their goods. Later the emperor also had the municipalities return to the seminaries their goods up to a certain value. One of the grounds of friction with the ecclesiastical authority remained, however, as Roberti notes, the system imposed by that legislation for the administration of the goods and revenues belonging to the Church, which was to be entrusted to exclusively lay bodies.

4. Evolution of the doctrine concerning the subject of ecclesiastical property

What has been said thus far provides some indications for investigating what has been considered the subject of the ownership of ecclesiastical property over the course of time. It appeared to some authors that from a passage of a constitution of Honorius and Theodosius it could be deduced that they held that the ownership of ecclesiastical property belonged to the Church as a universal body. This is, however, a somewhat vague concept, and it is not known whether it had practical applications. The sources in the times following the fall of the Western Roman Empire, as Imbart de la Tour pointed out, show us the episcopal authority as the owner of the ecclesiastical property included within the diocese. For a long time it is the bishop who, in the case of exchanges, exchanges the property of the parish church. Later, when, as has been seen, following a customary evolution, the patrimony of the latter assumes an autonomous character, the acts of disposal will be carried out by the rector, with the assent of the population and with the intervention of an envoy of the bishop, as can be seen in the very formulas of the Speculum iudiciale of William Durand in the 13th century. It is understood that this occurred for ecclesiastical bodies of common law. The theory of the division of ownership into eminent domain and useful domain, formed in the period of the rebirth of the study of Roman law, although erroneous from the point of view of that law, nevertheless served to overcome the difficulties that could arise there. It also served to affirm the ownership of individual ecclesiastical bodies in the numerous cases in which they were included within the circle of a feudal lordship: little by little the ownership of the lord was affirmed in the sphere of eminent domain, and he who in reality became the true subject of the real right was the ecclesiastical body.

The manner of conceiving such a subject also had a long evolution. In the 11th and 12th centuries, ownership was attributed to the building of the Church itself, or to the relics of the saint honored there, until finally there was affirmed in the field of law the concept of the mystical person, of an abstract subject: a nomen iuris.

II. LAW IN FORCE

1. General principles and distinctions

The Church, being a juridically perfect society, has a right to all those means that are necessary to her for the attainment of her end. These means are not only spiritual (Sacraments and Sacramentals), but also temporal; and the right that belongs to the Church with regard to them must be considered as proper, original and autonomous, that is, entirely independent of the civil authority. Canon 1495, § 1, reaffirming the traditional doctrine and practice of the Church, already solemnly proclaimed by Pius IX in the Syllabus (prop. 26-27) and in the allocation of 7 Sept. 1851, provides: « Ecclesia Catholica et Apostolica Sedes nativum ius habent libere et independenter a civili potestate acquirendi, retinendi et administrandi bona temporalia ad fines sibi proprios prosequendos ».

The right to acquire, possess and administer temporal goods belongs not only to the Catholic Church and to the Holy See but also, in accordance with the sacred canons, to « ecclesiis singularibus aliisque personis quae ab ecclesiastica auctoritate in iuridicam personam erectae sint » (can. 1495, § 2). Hence canon 1498 explains that, in the canons relating to the acquisition and administration of temporal goods, « nomine Ecclesiae significatur non solum Ecclesia universalis aut Sedes Apostolica sed etiam quaelibet persona moralis in Ecclesia, nisi ex contextu sermonis vel ex natura rei aliud appareat ».

Ecclesiastical goods considered in a broad sense, that is, comprising all things destined to attain the ends pursued by the ecclesiastical society, can be divided into two categories: sacred things (v. cose), and ecclesiastical goods or things in the strict sense, commonly designated by the name bona Ecclesiae, res Ecclesiae, which have a patrimonial utility and an exchange value and serve to satisfy the economic needs of ecclesiastics, to provide for the expenses of worship, in a word to attain mediately or immediately the ends of the Church.

As regards the modes of acquiring ecclesiastical temporal goods, one must distinguish the modes of acquisition of natural law and those of positive law (can. 1499, § 1), the modes of acquisition of private law and those of public law. These two distinctions are not interchangeable, because, as has been observed, the modes of acquisition of natural law have a narrower scope than that of the modes of acquisition of private law, which includes, among others, also those that, in private law, are called original modes and are not of natural law.

2. Modes of acquisition of private law

For the modes of acquisition of private law the general principle established with regard to contracts in canon 1529 holds, according to which « quae ius civile in territorio statuit de contractibus tam in genere, quam in specie, sive nominatis sive innominatis, et de solutionibus, eadem iure canonico in materia ecclesiastica iisdem cum effectibus serventur, nisi iuri divino contraria sint aut aliud iure canonico caveatur ». By this canon the civil laws in this matter become, save the reservations expressed in the canon itself, canonical laws, that is, they are, as it is said, canonized (v. CANONIZZAZIONE DELLE LEGGI CIVILI). This principle holds, in our view, not only for all derivative modes of acquisition, but also for all original modes of acquisition.

The reservation of positive canon law, contained in the cited canon, is understood in the broadest way, that is, not only for general provisions but also for particular ones incompatible with civil law (thus as regards the patrimonial acts of religious, and of religious bodies), and not only for written law but also for customary law.

Of the norms peculiar to ecclesiastical matter contained in the Codex we recall: those regarding prescription, and in particular that of canon 1512 relating to the purely canonistic requirement of good faith continuous throughout the entire period of time required for prescription (v. PRESCRIZIONE); that which regulates the capacity of the subject in transactions ad causas pias, independently of civil law, referring to natural and ecclesiastical law (can. 1513, § 1); that, of which we shall speak further on, relating to the value of the formalities prescribed by civil law, in the case of dispositions ad pias causas (can. 1513, § 2); those relating to alienations (can. 1530 ff.) and to transaction (can. 1927, § 2).

Regarding the practical scope of the reservation of divine law, natural or positive, it has been observed that, given the foundation on which the reservation is based, canonization must be considered excluded only in those cases in which the application of a civil norm would entail a discipline contrasting with precepts of divine law; and the example has been adduced of a civil norm that establishes an excessive legal interest, and that therefore would be to be considered contrary to divine law; it has been said that it would nevertheless be applicable in cases in which, owing to the existence of a just and proportionate title, that interest would not be to be considered excessive (P. Ciprotti, Contributo alla teoria della canonizzazione delle leggi civili, Rome 1941, p. 90 ff.).

3. Modes of acquisition of public law

Among the modes of acquisition of public law are to be considered in the first place ecclesiastical tributes (v.), which, however, now have less importance than they had in the past.

Conversely, of notable importance in many countries, since the last century, are the contributions that the State gives to certain ecclesiastical bodies, and above all the supplementary allowances of congrua (v. CONGRUA).

Another mode of acquisition of public law consists in the law, inasmuch as it declares in what way, after the division of the territory proper to a determined moral person or after the extinction of this, its goods must be divided or assigned to others. Canons 1500 and 1501 provide respectively that, save the different will of the founders or of the donors, and save legitimately acquired rights and the particular laws relating to the ecclesiastical moral person in question, after the division of the territory of this, « etiam bona communia quae in commodum totius territorii erant destinata, et aes alienum quod pro toto territorio contractum fuerat, ab auctoritate ecclesiastica, cui divisio competat, cum debita proportione ex bono et aequo dividi debent », and that, after the extinction of a moral person, « eius bona fiunt personae moralis ecclesiasticae immediate superioris ».

4. Donations and testamentary dispositions « ad pias causas »

At present the most important source of revenues for the Church is constituted not by tributes, as in past centuries, but by spontaneous contributions, that is, apart from the endowments of States, by dispositions for a gratuitous title of the faithful. These can be made either by actum inter vivos (donation) or by actum mortis causa (testament).

As for the capacity of the subject to perform these acts and the form they must take, can. 1513 excludes, as was recalled above, the limitations relating to the capacity to donate or to make a will imposed by the civil laws, and does not consider the formalities prescribed by these to be necessary. The question has been asked whether by the provision of can. 1513, § 2 the CIC intended to abrogate the norm of the earlier law according to which dispositions in favor of the Church were valid even if lacking those formalities: there are those who hold that the thesis of abrogation is better founded; but there is no lack of those who affirm that in canon law the rule holds that transactions ad pias causas are, in every case, non-formal, that is, independent, for their canonical validity, of the solemn forms established by the secular laws, holding that whoever takes advantage of the invalidity of those transactions has not only a moral or conscientious obligation to carry out the will of the disposer, but also a true and proper juridical obligation. In this regard it has been aptly observed that the CIC uses a prudent word when it says " moncantur " to signify the obligation incumbent on the heir, so that excessive insistence may not uselessly disturb good faith or provoke conflicts with the civil laws.

On the subject of acts of liberality performed ad pias causas, canon law contains two important exceptions with respect to civil law, namely the validity of trusts, both in acts inter vivos and in those mortis causa (can. 1516), and the impossibility of revoking a donation made to a church on account of the ingratitude of its rector (can. 1936, § 4).

As regards a donation made to the rector of a church, even if this church belongs to religious, can. 1536, § 1 establishes the presumption iuris tantum that the donation was made to the church. A donation made to a church cannot be repudiated by its rector without the authorization of the ordinary (can. 1536, § 2).

For the faithful fulfillment of pious wills the CIC establishes appropriate safeguards: it entrusts their execution to the Ordinaries, who must watch over their fulfillment, also by means of visitation; it obliges those who have been named executors by the disposer himself to render an account to the Ordinaries of their work; it considers as not attached the clauses added in wills that would exclude the right of supervision of the Ordinaries (can. 1515); it provides that a cleric or religious who has received goods in trust, whether by acts between the living or by will, must inform the Ordinary and indicate to him the goods and the relative burdens, and that the Ordinary must require that the trust goods be placed in safety and watch so that the pious will of the disposer is executed (can. 1516, §§ 1-2); it reserves to the Holy See the reduction, diminution and commutation of last wills — unless the disposer has expressly granted this power to the Ordinary — in the case in which the execution of the purpose established by the testator is not possible or not easy (can. 1517, § 1); it attributes to the Ordinaries the faculty of reducing the burdens imposed, in the case of a supervening impossibility of their execution without fault of the administrators, unless the burdens consist in the celebration of Masses, in which case their reduction belongs solely to the Holy See (can. 1517, § 2).

5. Other voluntary contributions

Spontaneous contributions, understood in the strict sense, include oblations or manual donations, whether occasional and sporadic, or on the occasion of collections made in churches or outside de domo in domum (can. 1182, § 2; 621 ff.), whether those that the faithful make spontaneously or those that they make rogati. For their discipline the provision of can. 1503 applies, which forbids private individuals, whether clerics or laypersons, to collect alms without the written authorization of the Holy See, of their own Ordinary, and, outside the diocese, of the local Ordinary.

6. Subject of the ownership of ecclesiastical goods

The theme relating to the subject of ecclesiastical patrimony has been one of those that has most divided canonical and civilist doctrine.

The various opinions upheld within canon law — that the ownership of ecclesiastical goods belongs to the divinity or to the Pope or to the clergy taken as a whole or to the universal Church, while there was no lack of those who considered ecclesiastical goods res nullius — now belong to history, after the ecclesiastical legislator issued the provision of can. 1499, § 2, which reads thus: " Dominium bonorum, sub suprema auctoritate Sedis Apostolicae, ad eam pertinet moralem personam, quae eadem bona legitime acquisiverit ". Therefore, according to the CIC, temporal ecclesiastical goods belong to the individual entities considered as subjects of rights, not to the Catholic Church as a juridical person. As to the meaning to be attributed to the term auctoritas, referred to in the cited canon, it is to be noted that it must be excluded that the auctoritas could in any way eliminate the patrimonial autonomy of the individual ecclesiastical juridical persons; the auctoritas must be understood not in the sense of a relationship of private law that stands in antithesis to the full dominical right of the individual entities, but in the sense of a relationship of public law, that is, as a power of supremacy and supervision.

Also for Italian civil law various opinions have been expressed regarding the determination of the subject of ecclesiastical patrimony: some have held that the community of the faithful should be considered the owner of the temporal goods of the Church; some that the Municipality should be considered the owner; others have affirmed the ownership of the State domain; others finally have maintained that the various ecclesiastical institutes should be considered owners insofar as they are recognized by the State as juridical persons. Our Civil Code of 1865 adopted this last theory, issuing the provisions of articles 2, 433, 434; the new Civil Code has substantially conformed to these provisions in art. 831.

Therefore, on this point, no difference is seen between the law of the Church and the law of the State.

7. Administration of ecclesiastical patrimony in canon law

The right to administer temporal ecclesiastical goods belongs to the Catholic Church and to the Holy See in an original manner (can. 1495, § 1); to individual churches and to other ecclesiastical juridical persons according to the sacred canons (can. 1495, § 2).

The Pontiff is considered by can. 1518 as the " supremus administrator et dispensator " of ecclesiastical goods; and can. 1499, § 2 refers, as has been seen, to the " suprema auctoritas " of the Holy See. This means, in substance, that the latter is the central and general organ of control over the administration of ecclesiastical patrimony. The powers of control are distributed among the various Roman Congregations, according to their competences.

The local organ of control and supervision over the administration of the goods of individual ecclesiastical entities is the Ordinary, who has the faculty of issuing, within the limits established by the common law, and having regard to customs and circumstances, particular norms in this regard (can. 1519).

The Ordinary must be assisted, in the exercise of his function of control, supervision and protection, by an administrative council, established and presided over by him, composed of two or more suitable persons, as far as possible also versed in civil law, to be chosen after having heard the cathedral Chapter, and excluding, save by apostolic indult, those who are blood relatives or relatives by marriage of the Ordinary in the first or second degree. The diocesan council of administration must be heard regarding the administrative acts of greater importance; its opinion is consultative, therefore not binding, save in special cases determined by the common law or by the tables of foundation.

In addition to the diocesan council of administration, the Ordinary, as regards the administration of goods belonging to a church or a pious place and lacking their own administrator, must appoint as administrators "viros providos, idoneos et boni testimonii" and replace them every three years, without prejudice to the requirements arising from local circumstances (can. 1521, § 1).

The administrators of ecclesiastical goods must: a) take an oath before the Ordinary to fulfill their duties "bene et fideliter" (cans. 1520, § 4; 1522, n. 1); b) draw up an "accuratum ac distinctum" inventory of all the goods with the description or valuation of each, or accept a previous inventory with a note of the changes undergone by the patrimony; the inventory must be drawn up in two copies, one of which is kept in the archive of the administration, the other in the archive of the curia, and must always be kept up to date (can. 1522, nn. 2, 3); c) exercise the diligence of a good father of a family, and therefore in particular watch over the preservation of the goods, observe the norms of canon law and of the civil law in force in the territory, or those that have been laid down by the founder or the donor or by the legitimate authority, collect the income accurately and in due time, keep it safe, employ it according to the intention of the founder or according to the law, invest, with the consent of the Ordinary, the money that remains after providing for expenses, keep the books of income and expenditure in order, keep the documents and papers of the administration in order (can. 1523); d) assign to those who provide work an honest and just wage, provide for their religious, moral, social and family needs, not oblige them to work beyond their strength (can. 1524); e) give each year to the Ordinary or to others the account of the administration (can. 1525).

Acts exceeding ordinary administration are subject to particular norms concerning the grounds, the formalities and the controls (v. AMMINISTRAZIONE, ATTI di).

Can. 1527, § 1 contains the general principle according to which administrators may not carry out acts exceeding ordinary administration without the prior written authorization of the Ordinary; and the ecclesiastical body is not bound to answer for contracts stipulated by the administrators without the authorization of the competent authority, "nisi quando et quatenus in rem suam versum sit" (can. 1527, § 2). In particular, administrators may not begin a lawsuit without the prior written authorization of the Ordinary, or, in case of urgent necessity, of the vicar forane, who is bound to inform the Ordinary at once of the granting of the authorization (can. 1526).

For the alienation in the strict sense of ecclesiastical immovable and movable things there is required: a) a just cause, which consists in the urgent necessity or the evident utility of the Church or in the purpose of performing a work of Christian charity; b) the authorization of the legitimate superior, which is: the Holy See for the alienation of precious things or of things whose value exceeds thirty thousand lire; the Ordinary, after hearing the opinion of the council of administration and with the consent of the interested parties (beneficiary, patron), for the alienation of things whose value is not greater than one thousand lire; the Ordinary without the opinion of the council of administration if it is a question of things of minimal value; the Ordinary with the consent of the cathedral Chapter and of the council of administration if it is a question of things whose value ranges from one thousand to thirty thousand lire; c) the prior appraisal of the thing, which may not be alienated for a price lower than that indicated in the appraisal itself; d) public auction or a publicity that allows the thing to be alienated to the highest bidder; e) the reinvestment for the benefit of the Church of the sum obtained from the alienation (cans. 1539-32).

The immovable goods of an ecclesiastical body may not be sold, without the authorization of the Ordinary, to their administrators and to the blood relatives or relatives by marriage of these in the first or second degree (can. 1540).

In all cases in which authorization is required, the lack of it produces the invalidity of the alienation (can. 1530, § 1, n. 3); an invalidity that can be asserted by the alienator, by his superior, by their respective successors in office, as well as by any cleric attached to the church that has suffered damage because of the alienation (can. 1534, § 2) against any possessor, for the restitution of the thing alienated, without prejudice to the right of the buyer against the alienator (can. 1534, § 1). The lack of the prescribed formalities gives rise to a personal action of the ecclesiastical body against the alienator and his heirs (can. 1534, § 1).

For the leasing of immovable goods there is required, in addition to public auction or at least a publicity that allows the thing to be leased to the highest bidder, the pontifical authorization, if the value of the lease exceeds thirty thousand lire and the lease is for more than nine years; the authorization of the Ordinary, with the consent of the cathedral Chapter and of the council of administration and of the interested parties, if the lease is of shorter duration, or if the value of the lease ranges from one thousand to thirty thousand lire and the lease is for more than nine years; the authorization of the Ordinary, after hearing the opinion of the council of administration, if the lease is of shorter duration, or if the value does not exceed one thousand lire and the lease is for more than nine years, whereas the authorization of the Ordinary is not required, but it is sufficient that the administrators inform him, if the lease is of shorter duration (can. 1541).

The immovable goods of the ecclesiastical body may not be leased, without the authorization of the Ordinary, to their administrators and to blood relatives or relatives by marriage in the first or second degree (can. 1540).

As regards the emphyteusis (v.) of ecclesiastical goods, the emphyteuta may not redeem the canon without the authorization of the legitimate ecclesiastical superior; where he redeems it, he must give the ecclesiastical body at least a sum corresponding to the canon; the emphyteuta must give suitable security for the payment of the canon and for the fulfillment of the established conditions; it must be established in the instrument of the emphyteutic agreement that the ecclesiastical judge is competent for the resolution of any disputes; it must be declared, finally, expressly that the improvements belong to the land (can. 1542).

As regards donations, the rectors of churches may not donate the movable things belonging to them — unless it is a question of things of little account — without a "iusta causa remunerationis aut pietatis aut christianae caritatis"; where this is lacking, the donation may be revoked by their successors (can. 1535).

For the granting of pledges and mortgages, as well as for contracting debts in relation to the goods of an ecclesiastical body, the authorization of the legitimate superior is necessary in accordance with can. 1532 (can. 1538, § 1).

For the conversion of bearer securities into other securities that are more, or at least equally, safe and profitable, the administrators need the consent of the Ordinary, of the diocesan council of administration and of the interested parties; no form whatsoever of commerce and negotiation of the securities is permitted (can. 1539, § 2).

As regards the contract of loan, it is not considered unlawful to stipulate the legal interest, provided it is not excessive, or even a higher one, when there exists a just and proportionate title (can. 1543).

8. Administration of ecclesiastical patrimony in Italian law

As regards the administration of ecclesiastical patrimony in Italian law, the legal regime in force before the Lateran Concordat may be summarized as a body of authorizations and controls by the state authority for acquisitions of immovable property under any title and of movable property by gratuitous title (Sardinian law of 5 June 1850, no. 1037, extended to the provinces of Modena by decree of 11 Nov. 1859, no. 80, to Lombardy by decree of 11 March 1860, no. 4003, to Umbria by decree of 7 Nov. 1860, no. 40, to the Marches by decree of 7 Nov. 1860, no. 359; the procedure was regulated by royal decree of 8 Feb. 1923, no. 278): controls by the economati of vacant benefices and by the prefectures over acts of ordinary and extraordinary administration; royal placet for every act of the ecclesiastical authority relating to the destination of ecclesiastical property (art. 16 of the Law of Guarantees of 13 May 1871, no. 214). All this matter, moreover, was governed by articles 433 and 434 of the Civil Code, and accordingly no value was recognized for the law of the State in the rules laid down on the subject by the law of the Church.

Under the concordat regime, the provision of art. 30 of the Concordat applies: "The ordinary and extraordinary management of the property belonging to any ecclesiastical institute and religious association takes place under the supervision and control of the competent authorities of the Church, to the exclusion of any intervention on the part of the Italian State...". This provision encounters a series of limitations in the Concordat and in the laws implementing it. First of all, the second paragraph of the cited article lays down an exception for institutes of a beneficiary character for which the State is or may be bound, under the rules in force, to make up for deficiencies of income (congrued or congruable benefices, cf. ministerial circular of 15 July 1929; art. 42, § 2, circular of 20 June 1929 of the Sacred Congregation of the Council; art. 12, circular of 30 June 1934 of the Sacred Consistorial Congregation; cf. also arts. 12-14 of law of 27 May 1929, no. 848; arts. 23-32 of regulation of 2 Dec. 1929, no. 2262); these institutes, with the exception of benefices situated in Rome or in the suburbicarian sees, are subject to state intervention as regards acts and contracts exceeding ordinary administration.

The procedure for obtaining authorization to carry out these acts is governed by art. 23 ff. of the regulation of 2 Dec. 1929, no. 2262.

Furthermore, from the very broad wording of the cited art. 30, "any ecclesiastical institute", there have been excluded, and subjected to the control of the State, the fabbricerie (arts. 15, 16, law of 27 May 1929, no. 848; art. 33 ff. of regulation of 2 Dec. 1929, no. 2262), and also confraternities not having an exclusive or prevalent purpose of worship (art. 17 of the cited law; art. 53 of the cited regulation).

Finally, the cited paragraph of art. 30 does not include authorization for the acquisition of property, for which the second paragraph of the same article provides: "The Italian State recognizes in ecclesiastical institutes and religious associations the capacity to acquire property, subject to the provisions of the civil laws concerning acquisitions by moral bodies" (cf. also art. 9 of law of 27 May 1929, no. 848; art. 11 of the Treaty; art. 27 of the Concordat; articles 932, 1060 of the Civil Code; art. 42, § 1, circular of the Sacred Congregation of the Council; art. 10, circular of the Sacred Consistorial Congregation, 30 June 1934; art. 22 of regulation of 2 Dec. 1929, no. 2262 contains an exception for the acquisition of the property of a debtor made by the body following adjudication and auction).

The question has been asked whether the aforementioned provision of art. 30 has a negative effect, in the sense that it merely excludes any state intervention in matters of administration of ecclesiastical patrimony, or a positive effect, in the sense that it intended to recognize civil efficacy in the controls of the ecclesiastical authority. Of the three possible hypotheses, with respect to the order of the Church and that of the State, as regards the administration of ecclesiastical patrimony: the existence of the state control alone (e.g., the institution of sequestration); the existence of the state control in conjunction with the canonical one (e.g., the authorization for the acquisition of property to which all ecclesiastical bodies are subject; the authorization for acts exceeding ordinary administration to which all congrued or congruable ecclesiastical bodies are subject); the existence of the canonical control alone — here only this last hypothesis comes into consideration. Faced with this hypothesis, in Italian law there arises the problem of the civil efficacy of the canonical norms relating to the administration of ecclesiastical patrimony and, in the case of an affirmative answer, the question arises of the limits of such efficacy. The importance of these problems appears evident especially in relation to the grave and manifold effects that derive from non-observance of the rigorous provisions relating to controls laid down by the ecclesiastical legislator. But on this theme, which is indeed among those that would most deserve to be examined in depth, doctrine has dwelt but little. Of the authors who have dealt with it so far, some, albeit basing themselves on different arguments, reach the same conclusions, namely that civil efficacy is not recognized in the canonical norms in matters of administrative controls; others, on the other hand, more correctly, come out in favor of the efficacy of the controls established by the CIC with respect to Italian law.

However, once the question of the state efficacy of canonical controls has been answered in the affirmative, another question of greater theoretical and practical importance remains open, namely the question of the limits of such efficacy. This question implies the problem of the nature of the civil recognition of the validity of the norms laid down by the Church in the present matter, and in the last analysis, on the resolution of this problem there directly depends: it must be seen, that is, whether these norms, in contact with state law, must remain unchanged or whether, rather, in order to be applied they must undergo substantial and formal changes.

Finally, another controversial question in the present subject is that relating to the effects of non-observance of the canonical norms concerning acts subject to the exclusive control of the ecclesiastical authority, e.g., the effects of the lack of authorization in the alienation of ecclesiastical property. If nothing else, the terminology of the CIC alone — in which there is indifferently talk of nullity and of invalidity in relation to acts performed without observance of certain formalities: cf. cann. 1530, § 1, no. 3; 1534; 2347) — different from that used in our Civil Code, would suffice to give rise to manifold and complex problems.

Pio Fedele

9. Computation of value for contracts concerning ecclesiastical goods

According to some canonists, the lire and francs referred to in cann. 534, 1532 and 1541 (v. above, no. 7) must be understood in gold currency, since at the time of the drafting of the CIC the lira and the Swiss franc stood, for example, at parity with each other and with gold. Subsequently, however, the Italian lira underwent several legal devaluations, while the Swiss franc underwent only one, in 1936.

In order to determine the ratio between the present Italian paper currency and the gold lira or franc of 1914, it is necessary first of all to note that the official exchange rate between the lira and the paper Swiss franc on 1 January 1949 was 141 lire for each Swiss franc (Gazz. Uff., 4-5 Jan. 1949).

It must also be borne in mind that by the Swiss federal decree of 27 Sept. 1936, art. 3, the paper Swiss franc underwent a legal devaluation of 30% with respect to the gold Swiss franc. Therefore, since 1936, to purchase 1000 gold Swiss francs, 1300 paper Swiss francs are officially required.

And since the official exchange rate between the paper lira and the paper Swiss franc in Italy on 1 Jan. 1949 was 141 lire, to purchase 1000 gold Swiss francs on the same date 1300 x 141 Italian lire were required, that is, 183,300 lire. Carlo and Giulio Pacelli