PERMUTA BENEFICIARIA. — This is a bilateral juridical transaction entered into between the two beneficiaries concerned, with the authorization of the Ordinary of the place or, if at least one of the benefices is reserved, of the Holy See (cann. 1487–88).
It is an institution very similar to a transfer, but sui generis; for, on the one hand, it cannot be confused with a contract of exchange properly so called, because its object is directly the persons and offices, and indirectly the benefices; while, on the other hand, it differs considerably from the notion which, before the CIC, authors who treated it extensively commonly gave of it, according to which the p. b. was a reciprocal resignation on condition that one party should obtain the other’s benefice and vice versa.
According to the new concept, there is no vacancy of the benefice, but the first transfer continues in the other person from the moment of the Ordinary’s consent (can. 1487 § 2). The distinction of the p. b. into triangular and quadrangular is a historical remnant; the CIC, in fact, admits only the bilateral form (can. 1488 § 2). The institution of the p. b. certainly dates back to a not very remote period, when benefices were joined to ecclesiastical offices. At first it took place between private individuals. In view, however, of the abuses that had to be deplored, the pontiffs Alexander III (can. 1 Conc. Turonense, cap. 8, X, III, 5), Urban III (ibid., cap. 8), and Innocent III (7 X, III 19) prohibited private p. b. and required, for their validity, a just cause recognized by the bishop; while other laws were enacted against simoniacal and fraudulent parties to exchanges. Clement V declared null every conferral of benefices made upon persons other than the parties to the exchange (Clem. III, tit. V). Gregory XIII, by the constitution Humano of 5 January 1584, ordered that the p. b. be published according to law. This law was confirmed by Benedict XIV by the constitution Ecclesiastica of 25 June 1746. The CIC draws almost entirely upon the ancient discipline (the obligation of publication is omitted). For the validity of the p. b., the following are required:
1) a just cause, which must be the utility or necessity of the Church in the judgment of the Ordinary, or another cause (thus also the benefit of the parties to the exchange, provided that it always redounds, at least indirectly, to the good of the Church: can. 1487 § 1); 2) that the p. b. not be effected to the detriment of those concerned and be carried out with the consent of the patron, if it concerns a benefice subject to the right of patronage (can. 1487 § 1); 3) that it be carried out with the intervention of the legitimate Superior, who shall be: the Holy See if the benefice is reserved (can. 1487 § 3), the Ordinary (but not the vicar general or capitular without a special mandate) if the benefice is not reserved (can. 1487 § 1). The consent must be given, in accordance with can. 186, either in a written document to be kept in the Curia, or before two witnesses; the parties may, however, act through a procurator, provided that he is duly authorized. 4) In order that there be no danger of simony, which in this case would be a matter of ecclesiastical law, the p. b. must be made without the imposition of any burden, and without any reservation of revenues, not even where the benefices are of unequal value (can. 1488 § 1). The p. b., even if the parties concerned had previously negotiated it, derives its validity from the moment of the Ordinary’s approval (can. 1487 § 2). Only then do the parties to the exchange acquire, according to some, ius in rem with respect to the new benefice, and according to others, ius in re.