Presumed Right

QUAESITUM LAW. - Canon 10 of the CIC, in conformity with what Roman law established, namely that a law cannot have effect with respect to facts that occurred prior to its promulgation, enunciates the fundamental principle of the non-retroactivity of laws in the following terms: Leges respiciunt futura, non praeterita, nisi nominatim in eis de praeteritis caveatur.

This principle does not resolve the problem of the effect of the new norm upon a relationship which, having arisen under the sway of the old law, continues to live under the new discipline. In order to preserve acquired rights (d. q.), that is, those rights for which, before the entry into force of the new law, the requirements for acquisition that the old law demanded had been fulfilled, canon 4 provides: «Iura aliis quaesita... integra manent, nisi huius Codicis canonibus expresse revocantur». Therefore, the canonical legislator, among the many theories proposed for resolving the aforesaid problem, has adopted the theory of acquired rights.

Although it has been doubted whether the norm concerning respect for acquired rights, formulated in canon 4, contains a principle different and self-standing with respect to that of the non-retroactivity of law set out in canon 10, it seems certain to us that the respect for acquired rights established in canon 4 must be considered as an application of the general principle of the non-retroactivity of law. It has been observed that the only difference between canon 4 and canon 10 consists in this: that, whereas in the latter the principle of the non-retroactivity of law is expressed in an objective formula, in the former the same principle has a subjective formulation, in the sense that the effect of the new law is established with respect to the subjective juridical condition of certain determined subjects at the moment of its entry into force (G. Michiels, op. cit. in bibl., p. 69 ff.).

Here the principle of the non-retroactivity of law must be considered under the aspect of subjective right, that is, according to the formulation contained in canon 4. The principle of the integrity of acquired rights, established by this canon, postulates that those persons retain their own rights — even though the CIC has in general abolished them for the future — who had derived them, not immediately from the earlier laws regulating in general the capacity, the status, the relations of persons and of ecclesiastical institutions, but had individually acquired and preserved them by virtue of an act or a fact that occurred under the sway of that law.

But it must be a question of true and proper acquired rights, that is, of rights that have already entered into the patrimony of the subject under the sway of the old law, even though the occasion for asserting and exercising them presents itself under the new. It is not always possible or easy to distinguish true rights from mere expectations, which are nothing other than hopes of rights. But this difficulty concerns the practical application of the theory of acquired rights, since, from the theoretical point of view, the distinction between an acquired right and an expectation is not only not — as it has seemed to some (cf. R. Naz, Droits acquis, in DDC, XXIV, col. 1514) — a didactic expedient useful only for determining the notion of an acquired right, but is not even so artificial and so unfounded as it has appeared to one who has affirmed that it is impossible to give satisfactory definitions either of an acquired right or of an expectation, and to one who has held that neither category presents a single characteristic proper to it and to the difference.

When one speaks of acquired rights, one must bear in mind that what remains acquired is the right in its conceptual and practical unity, and not instead its content of powers and faculties, inasmuch as, while the former, once acquired, is no longer lost, the latter, and the manner of exercising the right itself, can be modified by the new law; thus, for example, once the status of spouse has been acquired, a subsequent law can no longer take it away, but can instead modify the various rights comprised within it (A. Trabucchi, Istituzioni di diritto civile, Padua 1948, p. 20 f.).

Although the principle that facts and their effects are governed by the law at the moment when they are accomplished does not coincide with the principle that the law respects acquired rights, nevertheless that principle has as a consequence, at least in many cases, respect for these rights, inasmuch as if a juridical fact accomplished under the sway of a law has produced in a person the acquisition of a subjective right and therefore the power to assert it and to assert its effects, given that the later law does not regulate that fact, nor its past or future effects, it will follow that the subjective right will not be harmed and that the person will be able to assert the right and its effects even after the entry into force of the new law; thus, for example, the law that changed the requirements of ordination or of the acquisition of an office would respect the right acquired by the ordained man to exercise the Order and by the invested man to perform the acts of his office; the law that abolished an acquisitive prescription would respect the right of one who had already previously acquired it through the completion of the prescription; the law that modified the norms of election would respect the right of one who had been elected and had accepted the election (Falco, op. cit. in bibl., p. 98).

Whenever the juridical fact necessary for the acquisition of a right depends on the completion, within a determined period of time, of a series of acts mutually independent, and some of these acts have been accomplished at the moment when the change of law occurred, the acts accomplished retain the value they had under the sway of the law in force when they were accomplished, while the acts that remain to be accomplished are subject to the provisions of the new law. On the other hand, whenever the juridical fact necessary for acquiring a right depends on the completion of acts that stand to one another in the relation of cause to effect, and some of these acts have been accomplished at the moment when the law was changed, the interested party has an acquired right to accomplish the subsequent acts according to the old law, with the exception of the form of the acts, which is governed by the new.

It goes without saying that, where the juridical fact from which an acquired right derives depends on a title of a contractual nature, the effects of the contract remain normally governed by the conditions established in it, even if some change occurs in the legislation relating to it.

Since an acquired right is a thing distinct from its consequences, these are governed by the law in force at the moment when they occur; thus, for example, in conformity with a response of 23 June 1918 of the commission interpreting the CIC, the judicial action deriving from betrothals concluded before the entry into force of the CIC can no longer be exercised after its promulgation, since the CIC has eliminated that action.

As regards the form of acts, the law in force at the moment when the acts were accomplished applies, by virtue of the principle tempus regit actum; the status and capacity of persons must be determined according to the law in force at the moment when the capacity is exercised.

On the subject of rescripts, the provision of canon 46 is recalled, according to which rescripta etiam motu proprio concessa... contra ius alteri iam quaesitum, non sustinentur, nisi expressa derogatoria clausula rescripto apponatur. On the subject of vows and promissory oaths, it must be borne in mind that dispensation from a vow and from an oath that harms the acquired right of another is reserved to the Holy See (cann. 1313, 1320).

While with regard to rights acquired by virtue of concordats the principle of the integrity of acquired rights holds without any exception whatsoever, with regard to rights acquired by virtue of other titles, whether they be privileges and indults of the Holy See as well, it does not have absolute value (cf. some examples reported by M. Falco, op. cit. in bibl., p. 69 f.).

Pio Fedele