ECCLESIASTICAL GOODS. – These are temporal goods (whether corporeal, such as movable and immovable property, or incorporeal, such as rights, actions, obligations, and easements) that belong to the universal Church or to a moral person under ecclesiastical law. These ecclesiastical goods are called sacred if dedicated to divine worship through blessing or consecration; precious if they possess notable artistic, historical, or material value (CIC, can. 1498, §§ 1 and 2).
OUTLINE:
I. History:
1. Ecclesiastical property under the Roman Empire
2. Ecclesiastical property from the barbarian invasions to the end of the Middle Ages
3. Civil legislation in recent centuries
4. Evolution of doctrine regarding the subject of ecclesiastical goods.II. Current Law:
4. General principles and distinctions
5. Modes of acquisition under private law
6. Modes of acquisition under public law
7. Donations and testamentary dispositions ad plas cautas
8. Other voluntary contributions
9. Subject of the ownership of ecclesiastical goods
10. Administration of ecclesiastical patrimony in canon law
8. Administration of ecclesiastical patrimony in Italian law.I. HISTORY
11. Ecclesiastical property under the Roman Empire
Our knowledge of the economic and legal life of Christian communities during the first three centuries is quite imperfect. The most important among them, particularly Rome, were able from the very beginning of their existence to dispose of sums for the benefit of the poor, prisoners, and persecuted, and could assist needy communities. The places where the faithful gathered were perhaps, at first, rooms made available by private owners or even rented, as we know Saint Paul did; and it is possible that they were Church property, but entrusted in trust to some private individual. The situation had already changed by the 3rd century. The tituli that began to arise in Rome were by then property of the Church, as was the case with the bishop's residence in Antioch. Moreover, in the persecutory edicts of Diocletian, the confiscation of possessions, archives, and books was contemplated. With the Constantinian edict of 313 and that of 321, Roman legislation recognized the Church's right to possess and inherit, and soon the ecclesiastical patrimony grew through donations from emperors and private individuals. In particular, the Roman Church succeeded in forming a substantial patrimony with holdings located in various regions of the Empire. A similar development occurred in other episcopal sees.12. Ecclesiastical property from the barbarian invasions to the end of the Middle Ages
The Germanic invasions and, later, the disputes between the Roman Church and the Eastern Empire, as well as the occupation of Africa and Sicily by the Arabs, caused enormous damage to those patrimonies. However, once the Germans became Catholic, sovereigns and private individuals restored vast properties to the Church. Numerous monasteries were founded both in the Frankish kingdom and in the Lombard kingdom: suffice it to recall, regarding the latter, the abbeys of Montecassino, Farfa, San Salvatore on Monte Amiata, Cava dei Tirreni, Nonantola, Bobbio, and many other cloisters amply endowed by kings, dukes, or wealthy Lombard nobles. These also donated substantial properties to female monasteries they had founded. In Byzantine Italy, after Byzantine domination extended there (867-1071), many Basilian monasteries flourished, and other monastic institutions were later founded and endowed by Norman princes after they, having expelled the Arabs and Byzantines, established a powerful state in southern Italy.Many donations were then made to such institutions by private individuals, especially after the Lombard legislation allowed those mortis causa for the benefit of the soul. These donations multiplied after the Franks descended into Italy with Charlemagne, thus increasing ecclesiastical patrimonies.
From a patrimonial standpoint, religious institutions founded by kings or princes, or that had come into their possession through donations or confiscations, were in a particular condition. These institutions were considered regii iuris, and their properties were in a hybrid condition: the protection the sovereign exercised over them tended to merge with a right of ownership, while ecclesiastical authors, such as the famous Archbishop Hincmar of Reims, argued that this was not a right of such a nature as to allow the king to dispose of these institutions and their properties at will and against reason. There were also numerous churches, both in Italy and outside the peninsula, founded by private individuals who had endowed them and claimed the right to dispose of them as their own property, appointing priests usually chosen from among their own household. For these institutions, there was a constant and patient action by ecclesiastical authority which, while seeking to encourage such pious foundations, gradually succeeded in bringing them under the power of the bishops.
The patrimonies of churches under royal protection enjoyed the same privileges as the properties of the royal patrimony and thus benefited from a special jurisdiction before the king's tribunal and, later, beginning with the reign of Louis the Pious, came into possession of immunitas, which protected them from state tax exactions and excluded public officials from their sphere, who could not exercise any act of coercion within II. Such privileges, which in earlier times pertained only to ecclesiastical institutions regii iuris, gradually extended to those of common law. The oldest among them was that granted by Charlemagne in 792 to the church of Aquileia; later, all episcopal sees were endowed with extensive immunitary privileges for their lands: typical in this regard is the concession made by Emperor Charles the Fat to the church of Arezzo on 15 February 882. The principal monasteries were also endowed with similar privileges, creating true immunitary islands within the state territory, as their inhabitants were exempt from ordinary judges and not subject to taxes or military service.
Holders of ecclesiastical property of common law were the bishops from the earliest times, but later the legal and economic individuality of individual churches gradually began to assert itself, both due to the generosity of private individuals toward them and because the bishops themselves assigned a portion of the episcopal see's revenues to the rectors of such institutions. Already, they could not interfere in the properties donated to these churches when the donors had excluded such interference, according to decisions of councils (such as that of Arles in 452); this respect for the donors' will became an uncontested rule.
On the other hand, according to the provisions given toward the end of the same century by Pope Gelasius I, bishops were to divide the revenues derived from the faithful into several parts, assigning one to the individual churches of the diocese, one to the clergy, and one to charity. They ended up assigning to the churches dependent on them also a portion of other revenues and the enjoyment of certain properties. This autonomous patrimonial position of the various churches, however, arose only in the 7th and 8th centuries.
In the feudal age, ecclesiastical property suffered many serious damages as secularizations of such properties increased, beginning with the grants made by the Carolingians verbo regis to their vassals: many of these were made in Italy, especially by Louis, son of Charlemagne, his grandson Lothair, and later descendants of the same house. It is not universally agreed whether these vassals were considered royal, as the French historian Lot maintains, or whether they were to be regarded as dependent on the bishops or abbots whose properties had formed their benefices, as Lesne holds. The former opinion now seems prevalent.
The interference of the Roman-German emperors in Church property culminated with the Saxon dynasty (961-1024). During this period, they effectively appointed bishops, albeit masking such appointments with fictitious canonical elections, invested them with their granted jurisdictions, and often made them docile instruments of their policy. This had vast repercussions on ecclesiastical patrimony, because bishops, having thus become great lords of the empire, organized their own feudal system by endowing it with ecclesiastical properties, and the same was done by the most powerful abbeys. Alongside every bishop, since the Carolingian age, stood an advocate who exercised criminal jurisdiction in the prelate's name, often led his troops in military actions, and collected significant tributes from the bishop's dependents for all this.
The contamination of the ecclesiastical patrimonial complex with the fief led to very serious consequences. Lay lords invested with ecclesiastical goods (b. e.) made them their inheritance and considered the churches included within them as feudal goods, appropriating tithes and other revenues: this led the Lateran Council of 1179 to prohibit the infeudation of tithes. On the other hand, already a century earlier, at the Council held by Urban II in Clermont (1095), the fathers had forbidden further concessions of fiefs made to the detriment of ecclesiastical patrimony. The harm, however, was already done, and in reality, the goods of episcopal churches and powerful abbeys remained largely encumbered by feudal bonds: moreover, the powerful ecclesiastical advocates continued their aims to establish principalities to the detriment of the entities they were supposed to protect. This was the case with the Habsburgs for the churches of Trento and Bressanone, and the same would likely have occurred with the patriarchate of Aquileia on the part 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 infeudations, the ecclesiastical patrimony, continually nourished by the liberality of the faithful, remained always considerable. Worthy of study is its organization, which had such importance for the economic and legal evolution of the Middle Ages.
The arrangement of ecclesiastical goods is based on two profoundly distinct types. One consists of those belonging to individual parishes and autonomous churches, the other of the large complexes of goods belonging to wealthy bishoprics and the most endowed monasteries. Between these two extremes, there are then infinite varieties.
The first type required a very simple administration, usually involving a few lands that constituted the ecclesiastical masso or maso, whose revenues, together with the portion of tithes and altar incomes due to the rector of the church, provided him with the means to sustain his life. These were goods that Emperor Louis the Pious, in the ecclesiastical capitulary of 818-19, chapter 10, had declared free from any imposition or service. Corresponding to this simple structure is the organization of large patrimonies. These were generally divided into three parts: one was cultivated directly by the owning entity through servants or labor to which colonists, aldiones, or even livellarii were obliged. A steward, called an azionario or villico, presided over such work. The second part was divided into mansi, an extent of land variable but such that it could be cultivated by a family of rustics. These were sometimes servants called casati because they had a dwelling attached to the mansus, or semi-free men like the aldiones, or even free men who had a lease contract called "livello" with the religious entity. Sometimes these cultivators were artisans, and instead of being obliged to give a portion of the harvests to the owner, they provided a certain number of working days as carpenters, blacksmiths, or other craftsmen 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 very mild ones, like other lands granted to persons who in one way or another had earned the favor of the bishop or abbot and generally corresponded to the entity with only a small monetary census. In general, ecclesiastical administration treated its dependents with great mildness. Even the servants, within the great property, could dispose of the goods they enjoyed through acts inter vivos or by last will; lease or emphyteutic concessions were renewed for generations and generations, with the payment of a light canon, so that, after much time had passed, the livellario or emphyteuta was considered the true owner, and the rights of the granting entity faded into a simple census.
The vastness of the properties of the great episcopal churches and wealthy abbeys provoked reactions here and there in Christian Europe, which intensified in the heretical movements of the 11th-13th centuries. Theories emerged that denied the Church the right to possess and would have wanted clerics to earn their living through manual labor. The policy of the communes did not adhere to these doctrines but often placed limits on the excessive expansion of ecclesiastical property, deemed harmful to the economy and especially to city finances, given the tax immunities it enjoyed. A similar policy was embraced by the kings of Sicily, who forbade the sale or donation of allodial or "burgensatic" lands to religious entities. Of particular importance on this subject was the Venetian legislation, which required religious entities that had received ecclesiastical goods through donation or will to sell them, allocating the proceeds to the purposes most desired by the benefactors. Such laws served as a model for those of other states and in some way preceded the reforms carried out by princes in the 18th century.
3. Civil legislations of the last centuries. - It cannot be forgotten that while the legislation of Italian states placed certain limits here and there on ecclesiastical properties, elsewhere the rise of various Protestant confessions in several transalpine states caused the annihilation of countless ecclesiastical entities and the confiscation of their patrimonies.
As for the French Revolution, it was a whirlwind that swept away churches, religious orders, and ecclesiastical patrimonies for a brief time. The Napoleonic government, which constituted its epilogue, remedied in part the excesses of the previous legislation, and if it suppressed various religious Orders, many parishes, and restricted the number of seminarians, it nevertheless assigned to bishoprics, chapters, seminaries, and curates a suitable endowment from national goods and restored to the surviving religious orders the administration of their goods. Later, the emperor also ordered municipalities to return to seminaries their goods up to a certain value. One of the points of friction with ecclesiastical authority remained, however, as Roberti notes, the system imposed by that legislation for the administration of goods and revenues belonging to the Church, which had to be entrusted to exclusively lay organisms.
4. Evolution of the doctrine concerning the subject of ecclesiastical goods. – What has been said thus far provides some indications for investigating what was considered the subject of the ownership of ecclesiastical goods throughout history. Some authors believed that a passage from a constitution of Honorius and Theodosius could be interpreted as evidence that they held the property of ecclesiastical goods to belong to the Church as a universal body. However, this is a somewhat vague concept, and it is unclear whether it had practical applications. Sources from the period following the fall of the Western Roman Empire, as Imbart de la Tour noted, indicate episcopal authority as the owner of ecclesiastical goods within the diocese. For a long time, it was the bishop who, in cases of commutation, exchanged the goods of the parish. Later, when—as previously mentioned—due to customary evolution, the patrimony of the parish acquired an autonomous status, dispositive acts were carried out by the rector, with the assent of the population and the intervention of a bishop’s representative, as can be seen in the formulas of Speculum iudiciale by Guglielmo Durand in the 13th century. It is understood that this applied to ecclesiastical entities under common law. The theory of the division of dominion into eminent domain and useful domain, formed during the revival of Roman law studies—though erroneous from the perspective of Roman law itself—nevertheless served to overcome difficulties that might arise. It also helped affirm the property rights of individual ecclesiastical entities in the numerous cases where they were included within a feudal lordship: gradually, the lord’s property was confined to the sphere of eminent domain, while the ecclesiastical entity became the true subject of real right.
The way in which this subject was conceived also underwent a long evolution. In the 11th and 12th centuries, ownership was attributed to the church building itself or to the relics of the saint venerated there, until finally, in the field of law, the concept of the mystical person—a juridical abstraction, a nomen iuris—was affirmed.
II. CURRENT LAW
1. General Principles and Distinctions — The Church, being a juridically perfect society, has the right to all those means necessary for the attainment of its end. These means are not only spiritual (Sacraments and Sacramentals) but also temporal; and the right that the Church holds regarding them must be considered as proper, original, and autonomous, that is, entirely independent of civil authority. Canon 1495, § 1, reaffirming the traditional doctrine and practice of the Church—already solemnly proclaimed by Pius IX in the Syllabus (propositions 26-27) and in the allocution of 7 September 1851—states: « 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 the Holy See but also, according to sacred canons, « ecclesiis singularibus aliisque personis quae ab ecclesiastica auctoritate in iuridicam personam erectae sint » (can. 1495, § 2). Hence, canon 1498 explains that, in the canons concerning 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 (b. e.), considered in a broad sense—that is, encompassing all things destined to achieve the ends pursued by ecclesiastical society—can be divided into two categories: sacred things (v. COSE), and ecclesiastical goods or things in the strict sense, commonly designated as bona Ecclesiae, res Ecclesiae, which have patrimonial utility and exchange value and serve to satisfy the economic needs of ecclesiastics, to provide for the expenses of worship, and, in a word, to achieve the ends of the Church either mediately or immediately.
Regarding the modes of acquisition of ecclesiastical temporal goods, a distinction must be made between modes of acquisition by natural law and those by positive law (can. 1499, § 1), as well as between modes of acquisition by private law and those by public law. These two distinctions are not interchangeable, for, as has been observed, the modes of acquisition by natural law have a narrower scope than those by private law, which include, among others, those that, in private law, are called original modes and are not of natural law.
2. Modes of Acquisition by Private Law — For modes of acquisition by private law, the general principle established regarding contracts in canon 1529 applies: « 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 ». With this canon, civil laws in this matter become, subject to the express reservations contained in the canon itself, canonical laws, that is, they are, as it is said, canonized (v. CANONIZZAZIONE DELLE LEGGI). In our view, this principle applies not only to all derivative modes of acquisition but also to all original modes of acquisition.
The reservation of positive canon law contained in the cited canon is understood in the broadest sense, that is, not only for general provisions but also for particular ones incompatible with civil law (as in the case of patrimonial acts of religious and religious entities), and not only for written law but also for customary law.
Among the norms peculiar to ecclesiastical matters contained in the Codex, we recall: those concerning prescription, and in particular that of canon 1512 regarding the purely canonical requirement of continuous good faith throughout the period of time required for prescription (v. PRESCRIZIONE); that regulating the capacity of the subject in transactions ad causas pias, independently of civil law, drawing upon natural and ecclesiastical law (can. 1513, § 1); that, which we shall discuss further below, concerning the value of formalities prescribed by civil law in the case of dispositions ad pias causas (can. 1513, § 2); those regarding alienations (can. 1530 ff.) and transaction (can. 1927, § 2).
Regarding the practical scope of the reservation of divine law, whether 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 where the application of a civil norm would entail a discipline contrary to divine law precepts; and the example has been given of a civil norm establishing an excessive legal interest, which would therefore be considered contrary to divine law; it has been said that such a norm would nevertheless be applicable in cases where, due to the existence of a just and proportionate title, that interest would not be deemed excessive (P. Ciprotti, Contributo alla teoria della canonizzazione delle leggi civili, Roma 1941, p. 90 sg.).
3. Modes of Acquisition by Public Law — Among the modes of acquisition by public law, ecclesiastical tributes (v. TRIBUTI ECCLESIASTICI) must be considered first, though they now have less importance than in the past.
Conversely, in many countries since the last century, the contributions that the State provides to certain ecclesiastical entities, and especially supplementary congrua allowances (v. CONGRUA), have gained notable importance.
Another mode of acquisition by public law consists in legislation, insofar as it declares how, after the division of the territory proper to a given moral person or after its extinction, its goods must be divided or assigned to others. Canons 1500 and 1501 respectively provide that, unless the founders or donors have expressed a different intention, and without prejudice to legitimately acquired rights and particular laws concerning the ecclesiastical moral person in question, after the division of its territory, « 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 » — Currently, the most important source of revenue for the Church is not tributes, as in past centuries, but rather spontaneous contributions, that is, apart from state endowments, gratuitous dispositions by the faithful. These may be made either by actum inter vivos (donation) or by actum mortis causa (testament).
The capacity of the subject to perform these acts and the form they must take are addressed by can. 1513, which, as previously mentioned, excludes the limitations on the capacity to donate or bequeath imposed by civil laws and does not consider the formalities prescribed by them as necessary. It has been asked whether, with the provision of can. 1513, § 2, the Codex Iuris Canonici (CIC) intended to abrogate the earlier legal norm according to which dispositions in favor of the Church were valid even if lacking those formalities. Some hold that the thesis of abrogation is better founded; however, others affirm that in canon law the rule applies that acts ad pias causas are, in any case, non-formal, that is, independent, for their canonical validity, from the solemn forms established by secular laws, maintaining that whoever benefits from the invalidity of those acts has not only a moral or conscientious obligation to execute the testator’s will but also a true juridical obligation. In this regard, it has been aptly observed that the CIC uses a prudent term when it says «moncantur» to signify the obligation incumbent upon the heir, so that excessive insistence does not uselessly disturb good faith or provoke conflicts with civil laws.
Regarding acts of liberality performed ad pias causas, canon law contains two important exceptions compared to civil law: the validity of trusts, both in inter vivos and mortis causa acts (can. 1516), and the impossibility of revoking a donation made to a church due to the ingratitude of its rector (can. 1936, § 4).
Concerning donations made to the rector of a church, even if it belongs to religious, can. 1536, § 1 establishes the iuris tantum presumption that the donation was made to the church. A donation made to the church cannot be repudiated by its rector without the authorization of the ordinary (can. 1536, § 2).
For the faithful fulfillment of pious intentions, the CIC establishes appropriate safeguards: it entrusts their execution to the Ordinaries, who must oversee their fulfillment, even through visitation; it obliges those appointed as executors by the testator to render an account of their work to the Ordinaries; it considers as not appended the clauses added to wills that exclude the Ordinaries’ right of oversight (can. 1515); it stipulates that the cleric or religious who has received goods in trust, whether through inter vivos acts or by will, must inform the Ordinary and indicate the goods and related burdens, and that the Ordinary must ensure that the trust goods are securely placed and oversee the execution of the testator’s pious will (can. 1516, §§ 1-2); it reserves to the Holy See the reduction, diminution, and commutation of last wills—unless the testator has expressly granted this power to the Ordinary—in cases where the execution of the purpose established by the testator is impossible or difficult (can. 1517, § 1); it grants Ordinaries the faculty to reduce imposed burdens in cases of supervening impossibility of their execution without fault of the administrators, except when the burdens consist of the celebration of Masses, in which case their reduction is solely within the competence of the Holy See (can. 1517, § 2).
5. Other voluntary contributions. — Voluntary contributions, understood in the strict sense, include manual oblations or donations, whether occasional and sporadic or made during collections in churches or outside de domo in domum (can. 1182, § 2; 621 ff.), as well as those made spontaneously by the faithful or those made rogati. Their regulation is governed by the provision of can. 1503, which prohibits private individuals, both clerics and laypersons, from collecting alms without the written authorization of the Holy See, their own Ordinary, and, outside the diocese, the local Ordinary.
6. Subject of the ownership of ecclesiastical goods. — The question regarding the subject of ecclesiastical patrimony has been one of those most divisive in canon and civil law doctrine.
The various opinions advanced within canon law—that the ownership of ecclesiastical goods pertained to the deity, the Pope, the clergy as a whole, or the universal Church, while some considered ecclesiastical goods res nullius—now belong to history, after the ecclesiastical legislator enacted the provision of can. 1499, § 2, which reads: «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 individual entities considered as subjects of rights, not to the Catholic Church as a juridical person. Regarding the meaning to be attributed to the term auctoritas in the cited canon, it should be noted that it is to be excluded that auctoritas could in any way eliminate the patrimonial autonomy of individual ecclesiastical juridical persons; auctoritas must be understood not in the sense of a private law relationship that would oppose the full dominical right of individual entities, but rather in the sense of a public law relationship, that is, as a power of supremacy and oversight.
Even under 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; others that the municipality should be considered the owner; others have affirmed the property of the state domain; still others have maintained that the various ecclesiastical institutes, insofar as recognized by the state as juridical persons, should be considered the owners. Our Civil Code of 1865 adopted the latter theory in articles 2, 433, and 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 the Holy See in an original manner (can. 1495, § 1); to individual churches and other ecclesiastical juridical persons according to the sacred canons (can. 1495, § 2).
The Pope is considered by can. 1518 as the «supremus administrator et dispensator» of ecclesiastical goods; and can. 1499, § 2, as seen, refers to the «suprema auctoritas» of the Holy See. This essentially means that the latter is the central and general organ of control over the administration of ecclesiastical patrimony. Powers of control are distributed among the various Roman Congregations according to their competencies.
The local organ of control and oversight over the administration of the goods of individual ecclesiastical entities is the Ordinary, who has the faculty to issue, within the limits established by common law and considering customs and circumstances, particular norms in this regard (can. 1519).
In exercising his function of control, oversight, and protection, the Ordinary must be assisted by an administrative council, established and presided over by him, composed of two or more suitable persons, as far as possible versed also in civil law, to be chosen after hearing the cathedral chapter, and excluding, unless by apostolic indult, those who are related to the Ordinary by blood or affinity in the first or second degree. The diocesan administrative council must be consulted regarding the most important administrative acts; its opinion is consultative, thus not binding, except in special cases determined by common law or foundation statutes.
In addition to the diocesan administrative council, the Ordinary, with regard to the administration of assets pertaining to a church or a pious place lacking its own administrator, must appoint as administrators «viros providos, idoneos et boni testimonii» and rotate them every three years, unless circumstances of the place require otherwise (can. 1521, § 1).
Administrators of ecclesiastical goods must: a) take an oath before the Ordinary to fulfill their duties «bene et fideliter» (cann. 1520, § 4; 1522, n. 1); b) compile an «accuratum ac distinctum» inventory of all assets, with a description or valuation of each, or accept a previous inventory with annotations of changes to the patrimony; the inventory must be drawn up in two copies, one kept in the administration’s archive and the other in the curia’s archive, and must be kept constantly updated (can. 1522, nn. 2, 3); c) exercise the diligence of a good father of a family, and thus in particular ensure the preservation of assets, observe the norms of canon law and civil law in force in the territory, or those established by the founder, donor, or legitimate authority, diligently and promptly collect revenues, keep them secure, employ them according to the founder’s intention or the law, invest—with the Ordinary’s consent—any remaining funds after expenses, maintain orderly records of income and expenditures, and keep documents and papers of the administration in order (can. 1523); d) provide workers with a fair and just wage, attend to their religious, moral, social, and familial needs, and not overburden them (can. 1524); e) submit an annual account of the administration to the Ordinary or others (can. 1525).
Special norms regarding motives, formalities, and controls apply to acts exceeding ordinary administration (v. ATTI di).
Can. 1527, § 1 establishes the general principle that administrators may not undertake acts exceeding ordinary administration without the prior written authorization of the Ordinary; and the ecclesiastical entity is not bound to honor contracts entered into by 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 initiate litigation without the prior written authorization of the Ordinary or, in cases of urgent necessity, the vicar forane, who is obliged to immediately inform the Ordinary of the authorization granted (can. 1526).
For the alienation in the strict sense of ecclesiastical immovable and movable property, the following are required: a) a just cause, consisting of urgent necessity, evident utility for the Church, or the purpose of performing an act of Christian charity; b) authorization from the legitimate superior, which is: the Holy See for the alienation of precious items or items whose value exceeds thirty thousand lire; the Ordinary, having heard the opinion of the administrative council and with the consent of interested parties (beneficiary, patron), for the alienation of items whose value does not exceed one thousand lire; the Ordinary without the opinion of the administrative council if the items are of minimal value; the Ordinary with the consent of the cathedral chapter and the administrative council if the value ranges from one thousand to thirty thousand lire; c) a prior appraisal of the item, which may not be alienated for a price lower than that indicated in the appraisal; d) public auction or publicity ensuring the item is sold to the highest bidder; e) reinvestment of the proceeds from the alienation for the benefit of the Church (cann. 1530-32).
Immovable property of an ecclesiastical entity may not be sold, without the Ordinary’s authorization, to its administrators or their relatives by blood or affinity in the first or second degree (can. 1540).
In all cases where authorization is required, its absence renders the alienation invalid (can. 1530, § 1, n. 3); such invalidity may be invoked by the alienating party, their superior, their respective successors in office, as well as any cleric attached to the church that suffered harm from the alienation (can. 1534, § 2) against any possessor, for the restitution of the alienated property, without prejudice to the buyer’s right against the alienating party (can. 1534, § 1). The absence of prescribed formalities gives rise to a personal action by the ecclesiastical entity against the alienating party and their heirs (can. 1534, § 1).
For the lease of immovable property, in addition to public auction or at least publicity ensuring the property is leased to the highest bidder, papal authorization is required if the lease value exceeds thirty thousand lire and the lease is for more than nine years; the Ordinary’s authorization, with the consent of the cathedral chapter, the administrative council, and interested parties, is required if the lease is of shorter duration or if the lease value ranges from one thousand to thirty thousand lire and the lease is for more than nine years; the Ordinary’s authorization, having heard the opinion of the administrative council, is required 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; no authorization from the Ordinary is required, but administrators must inform him, if the lease is of shorter duration (can. 1541).
Immovable property of an ecclesiastical entity may not be leased, without the Ordinary’s authorization, to its administrators or their relatives by blood or affinity in the first or second degree (can. 1540).
Regarding the emphyteusis (v. ENFITEUSI) of ecclesiastical goods, the emphyteuta may not redeem the canon without the authorization of the legitimate ecclesiastical superior; if redeemed, they must provide the ecclesiastical entity with at least a sum corresponding to the canon; the emphyteuta must provide adequate security for the payment of the canon and the fulfillment of the established conditions; the instrument of the emphyteutic agreement must stipulate that the ecclesiastical judge is competent to resolve any disputes; it must also expressly declare that improvements belong to the land (can. 1542).
Regarding donations, rectors of churches may not donate movable property belonging to them—unless they are of little value—without a «iusta causa remunerationis aut pietatis aut christianae caritatis»; if such cause 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 related to the assets of an ecclesiastical entity, the authorization of the legitimate superior is required under can. 1532 (can. 1538, § 1).
For the conversion of bearer securities into other securities that are at least equally secure and profitable, administrators require the consent of the Ordinary, the diocesan administrative council, and interested parties; no form of commerce or negotiation of securities is permitted (can. 1539, § 2).
Regarding the loan contract, it is not considered illicit to agree upon legal interest, provided it is not excessive, or even a higher rate when a just and proportionate title exists (can. 1543).
8. Administration of Ecclesiastical Property under Italian Law. — Regarding the administration of ecclesiastical property under Italian law, the legal regime in force prior to the Lateran Concordat can be summarized as a complex of authorizations and controls by the state authority over the acquisition of real estate by any title and of movable goods by gratuitous title (Sardinian law of June 5, 1850, no. 1037, extended to the Modenese provinces by decree of November 11, 1859, no. 80, to Lombardy by decree of March 11, 1860, no. 4003, to Umbria by decree of November 7, 1860, no. 40, and to the Marches by decree of November 7, 1860, no. 359; the procedure was regulated by royal decree of February 8, 1923, no. 278): controls by the economati of vacant benefices and by the prefectures over acts of ordinary and extraordinary administration; royal approval for every act of the ecclesiastical authority concerning the destination of ecclesiastical goods (art. 16 of the Law of Guarantees of May 13, 1871, no. 214). Furthermore, this entire matter was governed by articles 433 and 434 of the Civil Code, and thus the rules established in this regard by canon law were denied any value under state law.
Under the concordat regime, the provision of art. 30 of the Concordat applies: "The ordinary and extraordinary administration of goods belonging to any ecclesiastical institute and religious association shall take place under the vigilance and control of the competent authorities of the Church, excluding any intervention by the Italian State...". This provision is subject to a series of limitations in the Concordat and its implementing laws. First, the second paragraph of the aforementioned article establishes an exception for institutes with a beneficial character for which the State is or may be required, under current norms, to supplement income deficiencies (congruated or congruable benefices, cf. ministerial circular of July 15, 1929; art. 42, § 2, circular of June 20, 1929, of the Sacred Congregation of the Council; art. 12, circular of June 30, 1934, of the Sacred Consistorial Congregation; cf. also arts. 12-14 of law no. 848 of May 27, 1929; arts. 23-32 of the regulation of December 2, 1929, no. 2262); these institutes, with the exception of benefices located in Rome or in the suburban sees, are subject to state intervention regarding acts and contracts exceeding ordinary administration.
The procedure for obtaining authorization to perform these acts is governed by art. 23 and following of the regulation of December 2, 1929, no. 2262.
Moreover, from the very broad wording of the aforementioned art. 30, "any ecclesiastical institute," the fabricerie (arts. 15, 16, law of May 27, 1929, no. 848; arts. 33 and following of the regulation of December 2, 1929, no. 2262) and confraternities not having an exclusive or predominant purpose of worship (art. 17 of the cited law; art. 53 of the cited regulation) have been excluded and subjected to state control.
Finally, the aforementioned paragraph of art. 30 does not include authorization for the acquisition of goods, for which the following paragraph of the same article provides: "The Italian State recognizes the capacity of ecclesiastical institutes and religious associations to acquire goods, subject to the provisions of civil laws concerning the acquisitions of moral bodies" (cf. also art. 9 of law no. 848 of May 27, 1929; art. 11 of the Treaty; art. 27 of the Concordat; arts. 932, 1060 of the Civil Code; art. 42, § 1 of the circular of the Sacred Congregation of the Council; art. 10 of the circular of the Sacred Consistorial Congregation, June 30, 1934; art. 22 of the regulation of December 2, 1929, no. 2262 contains an exception for the acquisition of a debtor's goods by the entity following adjudication and auction).
The question has been raised whether the aforementioned provision of art. 30 has a negative effect, in the sense that it merely excludes any state intervention in the administration of ecclesiastical property, or a positive effect, in the sense that it intended to recognize civil efficacy to the controls of the ecclesiastical authority. Of the three possible hypotheses, with respect to the legal systems of the Church and the State, concerning the administration of ecclesiastical property—namely, the existence of only state control (e.g., the institution of sequestration); the existence of state control in concurrence with canon law control (e.g., authorization for the acquisition of goods to which all ecclesiastical entities are subject; authorization for acts exceeding ordinary administration to which all congruated or congruable ecclesiastical entities are subject); or the existence of only canon law control—only the last hypothesis is relevant here. Faced with this hypothesis, under Italian law, the problem arises of the civil efficacy of canon law norms concerning the administration of ecclesiastical property and, in the case of an affirmative answer, the question of the limits of such efficacy. The importance of these problems is evident, especially in relation to the serious and multiple effects deriving from the non-observance of the strict provisions regarding controls established by ecclesiastical legislation. However, on this topic, which is certainly worthy of deeper examination, doctrine has scarcely dwelt. Among the authors who have addressed it thus far, some, though basing their arguments on different grounds, reach the same conclusion, namely, that civil efficacy is not recognized for canon law norms in matters of administrative controls; others, more correctly, pronounce in favor of the efficacy of the controls established by the CIC with respect to Italian law.
Nevertheless, even if the question of the statutory efficacy of canon controls is resolved affirmatively, another question of greater theoretical and practical importance remains open: the question of the limits of such efficacy. This question implies the problem of the nature of the civil recognition of the validity of norms established by the Church in this matter, and ultimately, the resolution of this problem directly depends on whether these norms, upon contact with statutory law, must remain unchanged or whether, in order to be applied, they must undergo substantial and formal changes.
Finally, another controversial issue in this subject is that concerning the effects of the non-observance of canon norms regarding acts subject to the exclusive control of the ecclesiastical authority, for example, the effects of the lack of authorization in the alienation of ecclesiastical goods. If nothing else, the terminology of the CIC—in which nullity and invalidity are used interchangeably in relation to acts performed without the observance of certain formalities (cf. cann. 1530, § 1, n. 3; 1534; 2347)—differing from that used in our Civil Code, would suffice to give rise to multiple and complex problems.
9. Calculation 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, n. 7) must be understood as gold currency, since at the time of the Codex Iuris Canonici's drafting, the lira and the Swiss franc, for example, maintained parity with each other and with gold. Subsequently, however, the Italian lira underwent several legal devaluations, while the Swiss franc experienced only one in 1936.
In order to determine the relationship between the current Italian paper currency and the gold lira or franc of 1914, it is first necessary to note that the official exchange rate between the lira and the Swiss paper franc on January 1, 1949, was 141 lire per Swiss franc (Gazz. Uff., Jan. 4–5, 1949).
It is also necessary to consider that, under the Swiss federal decree of September 27, 1936, art. 3, the Swiss paper franc underwent a legal devaluation of 30% relative to the Swiss gold franc. Thus, from 1936 onward, 1,300 Swiss paper francs were officially required to purchase 1,000 Swiss gold francs.
Since the official exchange rate between the Italian paper lira and the Swiss paper franc in Italy on January 1, 1949, was 141 lire, 1,000 Swiss gold francs at that same date required 1,300 × 141 Italian lire, that is, L. 183,300. Carlo e Giulio Pacelli
BIBL.:
In addition to the works cited above, see: A. Cicognani, I beni temporali della Chiesa, in Apollinaris, 12 (1939), p. 3 sgg.; G. Catalano, La capacità patrimoniale degli enti ecclesiastici, Milano 1940; F. M. Cappello, De bonis Ecclesiae temporalibus, Roma 1941; P. Gasparri, De bonis Ecclesiae temporalibus, Roma 1941; M. Petroncelli, Il regime patrimoniale degli enti ecclesiastici, Napoli 1942; V. GIUDICE, Nozioni di diritto canonico, Milano 1943, p. 183 sgg. Pio Fedele