FONDAZIONE PIA (CAUSA PIA)

FOUNDATION, PIETY (CAUSA PIA).

Summary:

I. Concept of foundation

II. The so-called *causae piae*

III. Benefices, chaplaincies, and legacies for worship

IV. Fulfillment of obligations of worship

V. The foundation *in the proper sense* and its regulation in the CIC

VI. Historical development of the pious foundation

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### I. CONCEPT OF FOUNDATION

According to doctrine, a foundation, or *universitas bonorum*, is said to be a juridical person constituted by a quantity of goods bound to a determined purpose, for the better attainment of which the patrimony itself is considered as the subject of rights.

It is distinguished from the juridical person of the corporate type, or *universitas personarum* or *collegium*, which, as a subject of rights, is independent of the individual members that form it and survives them. The *collegium* lives on through the persons who first constitute II.
The foundation, instead, lives on through the unilateral will of its founder and is subject to his will, materialized in the act of foundation, which may be an *inter vivos* act or a *mortis causa* disposition.

It was first the canonists, among whom Sinibaldo dei Fieschi, who became pope under the name of Innocent IV (1243–54), who had the precise conception of the corporation as a *universitas* distinct both from the individual members that compose it and from the totality of them, in conformity with the thought of Roman jurists.

Having conceived the Church as a *corpus mysticum*, they extended this concept to all corporate entities, which were therefore considered as persons, that is, as subjects capable of being holders of rights and duties, like physical persons.

Later, this conception was also upheld by Bartolo (1314–57) and then accepted by other commentators and all subsequent jurists.

The concept of the foundation or institution also developed in a particular way through canon law. Every ecclesiastical office, in fact, with its own patrimony, was considered as an autonomous entity. And with this, the concept of the autonomous foundation was elaborated, a concept that then passed into modern law.

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### II. THE SO-CALLED *CAUSAE PIAE*

Foundations, the juridical expression of Christian charity, may also be called *causae piae* according to the purpose for which they are destined.

The term *causa pia*, used for the first time, though with a different meaning, in the legislation of Justinian (C. 1, 3, 43–46; C. 1, 2, 19; Nov. 131, c. 11, n. 3; Nov. 65) and which reveals the Christian importance recognized even by Bonfante himself (op. cit. in bibliography, p. 20), indicated a juridical transaction or any act, *inter vivos* or *mortis causa*, whose principal purpose and motive was the exercise of piety toward the needy or the practice of works of religion.

It cannot be said in an absolute way that the purpose was already personified as the subject of the patrimony, that is, that the foundation was recognized as a juridical person. But it is certain that, in the course of time, the purpose of the disposition, that is, the *causa pia*, came to be considered in isolation and individualized, becoming independent, so that the purpose rendered the disposition impersonal in the sense that it was destined not to a person but to a purpose.

This was due especially to the repetition of dispositions for the soul, in which the donor or legatee could not be considered as the true recipients of the patrimony bound to the mystical purpose of the salvation of souls. Therefore, once the purpose of the disposition assumed an independent character, the patrimony that was its object did not merge with the Church or the legatee entity; with the special destination of it to a determined use, there arose the concept of the foundation in the modern sense.

Thus, on the basis of Romano-canonical doctrine, the *pia causa* was recognized as a foundation and therefore susceptible of becoming a juridical person through a provision of the competent authority.

In the broader usual meaning, ecclesiastical foundations are understood to be those juridical moral persons that are characterized by the destination of their patrimony to ends of worship and religion or in any case proper to the Church.

The current CIC overcomes the theoretical difficulties deriving from the division of juridical persons into corporations and foundations, but uses a more convenient distinction between two categories of collegial and non-collegial persons.

Collegial persons are constituted by a minimum of three physical persons with equal rights (e.g., the College of Cardinals, Orders, confraternities, cathedral and abbatial chapters, religious houses with or without recognized vows, etc.); non-collegial persons include both institutions permanently created for the public good (e.g., the Holy See, bishoprics, offices, churches, parochial benefices, fabbricieri, institutes for missions, universities of studies, etc.) and patrimonial goods destined to a particular purpose of charity (*causae piae*: e.g., orphanages, hospitals, hospices) and of education (e.g., seminaries, schools for the poor, etc.).

Therefore, under the denomination of *causae piae* are comprehended, in a very broad sense, all those non-collegial entities that canon law recognizes as subjects of law or moral persons or at least susceptible of becoming such, arising from dispositions of will aimed at religious or worship or charity purposes (can. 1489 ff.).

These dispositions of will may originate from moral persons by the local Ordinary and, with his decree, acquire juridical personality in the Church; these two conditions must concur, namely, that the end of the work be truly useful and that a patrimony be constituted that can prudently be judged sufficient for the established purpose (can. 1489 § 2).

Special norms regard the foundation charters, the administration, the supervision, and the suppression of such entities (canons 1490–94).

Such pious institutions need recognition for civil effects by the State in order to exist as civil juridical persons and are subject to governmental authorization for the acquisition of immovable goods and the acceptance of donations, inheritances, and legacies (art. 17 of the Civil Code).

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### III. BENEFICES, CHAPELLANCIES, AND LEGACIES FOR WORSHIP

Among the *causae piae*, that is, foundations that involve the perpetual destination of goods or revenues to religious or worship purposes, may be numbered benefices, ecclesiastical and lay chaplaincies, and legacies for worship (v. LEGATO PIO).

A benefice is a foundation in which an ecclesiastical office, with its own patrimony that must provide the ecclesiastical incumbent with adequate maintenance, is constituted as a juridical person with the concurrence of the competent ecclesiastical authority (the Holy See or the Ordinary), a concurrence that is expressed through the hereditary transmission of the benefice.

If the pious founder imposes on his donation or testamentary disposition the obligation of spiritual offices to be celebrated in a given chapel at a given altar, there arises an ecclesiastical chaplaincy.

A lay chaplaincy, instead, is a foundation whose purpose is the celebration of Masses in a given chapel or at a given altar or to perform other sacred functions by an ecclesiastical person (chaplain) appointed by the founder or his successors and removable at their discretion, without any institution by the bishop; the chaplain is maintained with private or family goods bound to the religious purpose.

Lay chaplaincies have an analogy in pious legacies. This last-will disposition has as its purpose the burden of celebrating Masses or other religious offices, with the difference that, as a rule, the endowment of a pious legacy does not consist in the direct assignment of goods or income from immovable property, considered as separated from the inheritance, but in the allocation for the purpose of an annual income to be satisfied by the heirs and successors of the deceased, without there being a chaplain or any real encumbrance imposed by him on the inherited goods. In this case, the legacy indicates the burden (modus) imposed by the testator on the heir or legatee to fulfil the same purposes.

However, the legacy may also result from the specific and exclusive allocation of certain immovable properties. In this case, the goods subject to the legacy are inalienable without certain formalities (cc. 1530 ff.).

When the pious legacy has as its purpose charity properly called “pious work” (v.).

With regard to lay chaplaincies and pious legacies for worship, their institutions arose from an extension of the concept of benefices to private family estates allocated to religious works, the suffrage of souls, and ecclesiastical ceremonies.

In admitting such an extension, the principles governing family foundations and commercial faithful institutions are also applied.

IV. FULFILMENT OF BURDENS OF WORSHIP

However, another doctrinal current observes that the equating of these institutions with churches, which were recognised as pia causa, i.e. as foundations, led to the consequence that they were considered as juridical persons under common canon and civil law.

The analogy that the said authors drew with family foundations, which by customary law were considered as juridical persons, implied that these institutions should also be recognised as such.

As to the lack of formal recognition by ecclesiastical and civil authority, it is also noted that this was considered tacitly granted by the fact that the bishop had the right to act for the fulfilment of burdens of worship, by virtue of common canon law. Indeed, the Council of Trent (sess. XXII, de reform., chaps. 8 and 9) had prescribed that bishops, even as delegates of the Apostolic See, should be the executors of all dispositions made both by last will and by inter vivos acts; that they should have the right to visit all charitable entities and lay places and to supervise all institutes destined for worship, the salvation of souls, and the poor, taking cognisance of their respective statutes and providing for their execution, while the administrators of these entities had to render them an annual account of their administration.

These principles, which the Church, faithful guardian of the pious wills of the faithful, has codified, reaffirming the principle that Ordinaries are the executors of all pious wills made either by inter vivos acts or by last will, and thus can supervise their fulfilment (cc. 1515 §§ 1 and 2); they have the right to demand an account, can even reject foundations that the oblator might wish to withdraw from the account to be presented to the local Ordinary, and must regard as non-existent any clauses in a will contrary to the rights of the bishop (c. 1515 § 3).

This is admissible when the legacy benefits an ecclesiastical entity subject to episcopal supervision; in other cases, the duty to execute the dispositions of the testator falls to the executor, the heir, or whoever has a legal interest to assert. In Italian civil law there is no provision similar to that of the decree of 27 May 1857 of the Kingdom of the Two Sicilies, which gave the diocesan bishop the right to act for the fulfilment of a chaplaincy or any legacy for worship (Scaduto, op. cit. in bibl., 1, n. 219), and therefore in the absence of such a provision the bishop cannot, by virtue of his office, be recognised as having the faculty to act for the fulfilment of foundations for worship; however, under art. 648 of the Italian Civil Code, a means is recognised that may be placed at the bishop’s disposal, who may, in the case, act as any private person interested in the fulfilment of the burden.

It should be added that, among other privileges enjoyed by pia causa, there was the very important one according to which they could be instituted without essential formalities and by inter vivos acts or last will by the mere declaration of the donor or testator.

These provisions were also received and in part modified by the norms of the 1917 Code of Canon Law, which, regarding pious wills in general, prescribes (c. 1513 § 1) that all those who, by natural and ecclesiastical law, can freely dispose of their goods may also give them to causes by inter vivos donation or mortis causa by will or legacy. In last wills, it adds, the formalities and solemnities prescribed by civil laws should also be observed as far as possible, but if these were omitted, the heirs should be admonished that the testator’s will must still be fulfilled (c. 1515 § 2), whenever such will is certain in any way. This is based on the fundamental principle that the basis of juridical obligations is not so much the observance of forms as a true obligation of natural law, i.e. of human conscience.

The heirs, however, cannot be deprived of the legitima, and in disputed cases they may obtain the “composition” recognised by the Penitentiary or the Congregation of the Council.

The pious wills of the faithful must be fulfilled scrupulously, both with regard to the substance and as regards the manner of administration and disbursement of the goods (c. 1514).

As to the patrimony, it is not decisive, according to the other doctrinal current, to deny juridical personality the fact that ownership, enjoyment, and administration of the goods belong to active patrons, heirs, and successors of the founder, since substantially the goods belong to the entity. Indeed, if the endowment consists of a specific immovable property directly assigned to the chaplaincy or pious legacy, the property itself constitutes the endowment of the entity and, for the purpose to which it is destined, is inalienable without the conditions required by the Code of Canon Law (c. 1530), so that the family’s ownership is merely nominal. If the endowment consists of the income from certain immovable properties, this income is a real encumbrance on the said properties, which, although alienable, always retain the burden of Masses or religious offices; this burden can be guaranteed by a mortgage in case of alienation of the goods. And when the burden is imposed on all the inherited goods, the endowment consists of the income allocated for the purpose, which is considered virtually separated from the goods themselves to constitute the endowment of the entity.

V. The *f. p.* in the strict sense and its regulation in the CIC. — According to the Code of Canon Law, distinct from causes for which, among all the various juridical figures it may encompass, is the *f. p.* which consists of temporal goods given in any manner to a juridical ecclesiastical person with the perpetual burden or for a notably long time of celebrating Masses with their annual income or of performing ecclesiastical functions or certain works of charity and piety (can. 1544 § 1).

For a *f. p.* to exist, according to canon law, it is therefore required that the patrimony not be constituted as a juridical person itself, but be attributed, by an inter vivos or mortis causa act, to an ecclesiastical juridical person with the burden of pious works.

*F. p.* are, in essence, pious causes lacking juridical personality.

The religious or charitable nature of the end is essential to the institution.

In addition to the end, there is the essential element of the patrimony as it is given to an already existing juridical person with the bond of destination to a specific end intended by the founder.

The burden entrusted to the juridical person of celebrating Masses or of attending to those given functions or works desired by the founder must be perpetual or, at least according to some authors, of a duration not less than 50 years. This latter relative perpetuity distinguishes *f. p.* from legacies more akin to "fiducia."

Absolute or relative perpetuity precludes conceiving of the pious cause with respect to a physical person.

The assignment of goods to a juridical person may be done by an inter vivos act or by testament.

The juridical person to which the goods are given for the attainment of the particular end of the foundation must accept the foundation. Since the burden is imposed together with the donation, the foundation does not exist without a bilateral contract; hence can. 1544 § 2 establishes that the foundation, once legitimately accepted through a synallagmatic contract (*do ut facias*), means that, in case of unjustified non-fulfillment of the burden, the will of the dispositive act must be interpreted, and in case of application, the principles of civil law on the fulfillment of bilateral contracts must be applied.

While before the Code the acceptance of a *f. p.*, even if not preceded by the authorization of the Ordinary or the religious superior, remained valid, today, according to some authors, acceptance must be authorized by the Ordinary or the religious superior under penalty of nullity, since the acceptance of the *f. p.* is an act exceeding ordinary administration; according to others, however, the lack of authorization by the Ordinary does not invalidate the *f. p.*, which can only be rescinded by the decree of the Ordinary (S. Romana Rota, 9 July 1920).

Written consent of the local Ordinary is therefore required, which he will grant only after having legitimately ascertained: a) that the juridical person is able to sustain the new burdens imposed, without detriment to those already existing; b) that the new income corresponds exactly to the new burdens according to the usages of the diocese (can. 1546 § 1).

The Ordinary moreover has the right to issue particular norms regarding the amount of the sufficient endowment for different foundations and the distribution of income (can. 1545).

The powers relating to the administration of *f. p.*, for which the common norms for all ecclesiastical entities apply, are reserved to the bishops, except in the case of *f. p.* made to exempt religious orders, in which case they are exercised by the religious superior.

The Church, so that the wills of the faithful founders may be respected and especially the end assigned to *f. p.* may be fulfilled, exercises careful activity of control and vigilance over the ecclesiastical entity that has accepted the foundation.

Indeed, if the endowment of the foundation consists of money or movable goods, it must be deposited in a secure place, as indicated by the Ordinary; the money and the proceeds from the sale of movable goods must be employed and invested as soon as possible and with all due care for the benefit of the foundation, with precise indication of the capital and its related income, and of the specifically determined worship obligations to be provided for. The methods of employment are established by the Ordinary after hearing the opinion of the interested parties and of the Diocesan Administration Council (can. 1547). Special norms are indicated for the preservation of the relevant documents (can. 1548-50).

*F. p.* cease when the adequate fund assigned by the founder is exhausted.

The burdens constituting the foundation may be reduced, as well as commuted or transferred to another juridical person (can. 1551).

According to the Council of Trent, bishops could provide for the reduction of such burdens *iure proprio*; the Code of Canon Law, however, reserves every faculty in this regard to the Holy See, which may delegate bishops with precise instructions regarding the manner in which the reduction must be effected.

The reduction of burdens is a typical operation of *f. p.*, just as for juridical persons there are the special figures of suppression and union.

Having premised all this, the CIC distinguishes between *f. p.* in the strict sense and *piæ voluntates*.

The *f. p.* must be identified in the end and in the patrimony, that is, it must have its own patrimony which is not confused with that of the entity to which it is attributed, and its own end which is not that of the entity itself.

A *piæ voluntas* is any human act which, by suitable means, intends to achieve a purpose of religion or Christian charity.

In the case in which the *piæ voluntas* is elevated by the competent ecclesiastical authority to juridical personality, then the pious cause or foundation becomes an institution.

Distinct from the pious cause and from the *f. p.* is the *fiducia*, which does not rise to the figure of an entity or recognized burden, but consists in the transmission, by inter vivos or last will act, of goods to an apparent heir who, however, is the executor of the will of the transferor for the benefit of third parties.

Testamentary *fiducia* is regulated differently by various civil legislations.

The CIC in can. 1516 establishes that a surgeon or a religious who have received goods in *fiducia* to be distributed or assigned to pious causes must notify the interested Ordinary, indicating all movable and immovable goods received in *fiducia*, along with all attached burdens; if the testator has manifested the will to oppose the fulfillment of this duty, those goods must be refused; the Ordinary must then ensure that the fiduciary goods are placed in safekeeping, overseeing them according to the norms of law.

VI. HISTORICAL EVOLUTION OF THE *F. P.* — In the early days of Christianity, immovable goods could not be bequeathed to Christian churches, since, being considered *collegia illicita*, they were forbidden from making acquisitions by inheritance or donation.

It may be considered, however, that even during the era of the catacombs, other types of legacies had to be made to pious causes, especially by patrician families converted to the new religion, not only to provide for the needs of worship but also to aid the poor and the sick.

Offerings were given in *fiducia* to priests, so that they might be disbursed for purposes of charity or religion.

With the cessation of persecutions, the emperor Constantine included among the legitimate corporations also the Christian Church, recognized its right to acquire and possess, ordered that its confiscated goods be restored, and himself wished to enrich it with legacies to sacred places. Moreover, he attributed juridical validity to dispositions in favor of pious causes in whatever manner they were made.

The emperors Valentinian, Marcian, and Justinian always issued decrees aimed at favoring legacies. The Supreme Pontiffs, faced with the facilities and privileges granted by the emperors to small dispositions, turned their care to giving a legal configuration to the new institution, which was then almost universally recognized by all Christian states and which preceded the institution of ecclesiastical benefices (cf. St. Cyprian, Ep. LIV; Innocent I, Ep. 25, cap. 2; etc.).

Churches then began to have extensive acquisitions through legacies and donations, and religious piety was driven to such an extent that very often the testators neglected their relatives and often even their own children. But the Fathers of the Church never approved such dispositions that were harmful to children and close relatives.

At that time, and subsequently multiplied, protected by the Church and favored by legislation, various institutions with the purpose of worship or charity arose (piae causae and piae fundationes). Religion and charity proceeded together to come to the aid of orphans, the sick, the poor, the elderly, pilgrims, and thus were founded those various institutes which, according to their different purposes, were called orphanotrophia, brephotrophia, gerontocomia, pædotrophia, iasocomia, xenodochia.

The institution, among the Lombards, and then under Charlemagne and his successors, favored legacies, even though abuses were not lacking, since many, both because of the religious influence of the times and to escape the oppression of feudal lords, commended themselves and their goods to churches and monasteries; a custom which then became more frequent around the year 1000, also because the enjoyment of the goods remained with the testators.

Until the 13th century, worship and charity were preserved; and canon law, following the footsteps of imperial legislation, recognized the legal personality of the various institutions directed to those purposes. Doctors and canonists then augmented the privileges of pious dispositions, recognizing that the validity of these required only the testator’s will without the need for formalities: *sufficienter donorum suorum divisionem faciendam nuda voluntas testatoris* (cf. Commentaries of Bartolus of Sassoferrato, Baldo, and Paulus de Castro). But when civil power began to consider the oversight of charitable works as its own function, the causes most disciplined by the Church were limited to comprehending exclusively those institutions that had a purpose of worship, which, however, included not only those erected under ecclesiastical title but also all the various foundations directed in any way to a purpose of worship, such as ecclesiastical and lay chaplaincies and, in general, legacies with burdens of worship.

Meanwhile, ecclesiastical real property had greatly increased, and since these were withdrawn from commerce they were called “mortmain.”

Already the Emperor Phocas in the East had issued dispositions to limit such acquisitions, but similar measures were taken in Italy by Roger of Sicily, Frederick II of Swabia, and Frederick III of Aragon; the Angevins, instead, favored ecclesiastical patrimonies by declaring them exempt from tax payments.

The Italian republics of Modena, Padua, Treviso, and other cities took harsh measures against ecclesiastical real property, burdening it with taxes; Venice did likewise, provoking against itself the famous interdict of 17 April 1606 at the hands of Pope Paul V.
In Naples in the 18th century several legislative dispositions were issued to prevent the growth of ecclesiastical property, so much so that from 1769 onward “mortmain” was prohibited from acquiring goods through inter vivos acts or last wills, and in the years 1771 and 1776 it was decreed that ecclesiastical goods should be given in emphyteusis.

Similar laws were promulgated in Tuscany and Lombardy, and all these measures were later endorsed by the doctrines of Italian economists and the French Encyclopedists.

One of the first acts of the French Revolution was against “mortmain,” the ordinance of 1789 being particularly celebrated for prohibiting the constitution of any “établissement de main-morte,” and the law of 12 July 1792 on the Civil Constitution of the Clergy, which suppressed benefices, chaplaincies, and “presbyteria” of any kind and under any denomination, lay foundations, and perpetual foundations for Masses and other religious services, prohibiting similar institutions for the future.

The same occurred in the Italian states into which French arms and ideas had penetrated.

With the reaction, however, ecclesiastical bodies recovered the freedom to acquire, and this was sanctioned in Naples in the Concordat concluded with the Holy See in 1818, until “mortmain” was entirely suppressed in Italy by the laws eversive of ecclesiastical property of 7 July 1866, no. 3036 of 15 August 1867, no. 3848.

With these laws, foundations having an object of worship were suppressed as moral entities, even if not erected under ecclesiastical title. A true and proper object of worship in its ritual and liturgical expressions was, however, required, while entities with different purposes, even if connected with religion, such as institutes for preaching, missions, teaching Christian doctrine, etc., were excluded from suppression.

VII. DISCIPLINE IN ITALIAN LEGISLATION

It was then observed that civil legislation, even when it prohibited autonomous foundations—that is, those constituted as moral persons for the attainment of a determined purpose of worship and charity—does not prohibit the purpose itself for which a foundation is constituted. In short, the suppression of certain entities of worship does not normally entail the suppression of the relative burdens of worship or charity, which are now, in accordance with the above-mentioned eversive laws, transferred to another moral person operating under state control, namely the Fund for Worship, which continues to perform its function even today. In fact, however, many burdens of worship no longer found anyone to fulfill them, and there was a strong regression in the liberality of the faithful.

In the Concordat concluded between the Holy See and Italy on 1 February 1929 it was established (art. 29, lett. d) that foundations of worship of any kind are admitted provided that they respond to the religious needs of the population and do not entail any financial burden on the State. This provision also applies to foundations already in existence de facto.

Naturally, state recognition of piae causae in the strict sense does not affect the nature of institutes lacking legal personality that such foundations have in canon law.

The recognition of the legal personality of foundations of worship is regulated by art. 17 of the Regulation approved by Royal Decree of 2 December 1929, no. 2262. Therefore, the Ordinary has the faculty to request the Minister of the Interior that foundations of worship, understood in the broadest sense, be recognized as legal persons, submitting the documents proving: a) that ecclesiastical approval has been granted; b) that the foundation is endowed with its own patrimony destined for purposes of worship; c) that it responds to the religious needs of the population; and d) that, finally, its recognition cannot entail any financial burden on the State.

Before the entry into force of the current Civil Code of 1942, it was controversial whether articles 833 and 1075 of the Civil Code of 1865 had been abrogated by the Concordat under Law no. 848 of 27 May 1929 on ecclesiastical entities. Indeed, neither the Concordat nor the aforementioned law contained an express abrogation of those articles.

Many authors therefore held that the provisions contained in articles 833 and 1075 had to be reconciled with those cited by the Concordat itself, and since this admitted the recognition of the legal personality of worship foundations—which before the Concordat could never have occurred by virtue of article 1, no. 6 of the Law of 1867—it had to be inferred from the annullability of the erection into a moral entity also the validity of the private act aimed at obtaining recognition of the foundation, validity always subject to the condition that the foundation responded to the religious needs of the population.

A legacy or donation, therefore, by which a patrimony was perpetually bound to a worship purpose, without this corresponding to a religious need of the population, would have had to fall under the prohibition of articles 833 and 1073, because the foundation would not have been admitted (article 29, letter d) and could not have been recognized as a legal person (article 17, regulation of 2 December 1929). Since the foundation was not admitted, the legacy or donation would have been legally ineffective.

However, the controversy is no longer tenable with the entry into force of the Civil Code of 1942, since the current code, by reorganizing the entire matter of private law, has implicitly abrogated articles 833 and 1073, no longer making any mention of the prohibitions contained in the cited articles.

Visser, De sollicitudinibus piarum voluntatum in iure canonico, Rome 1949 and bibliography cited therein, pp. 111-111. Francesco Ercolani