BENEFICIAL EXCHANGE. - It is a bilateral juridical transaction that takes place between the two beneficiaries concerned, with the authorization of the local Ordinary or, if at least one of the benefices is reserved, of the Holy See (cann. 1487-88).
It is an institution very similar to transfer, but sui generis; if on the one hand, in fact, it cannot be confused with the contract of exchange proper, because its object is directly the persons and the offices, indirectly the benefices, on the other it departs greatly from the notion that, before the CIC, the authors who treated it extensively commonly gave of it; for whom the benefice exchange was a mutual resignation under the condition that one obtained the other's benefice and vice versa.
According to the new concept there is no vacancy of the benefice, but it is the first transfer that, from the moment of the Ordinary's consent (can. 1487 § 2), continues in the other person. The distinction of the benefice exchange into triangular and quadrangular is a historical memory; the CIC, in fact, admits only the bilateral one (can. 1488 § 2). The institution of the benefice exchange certainly goes back to a not too remote era, when benefices were joined to ecclesiastical offices. At the beginning it took place between private individuals. However, in view of the abuses that had to be lamented, the pontiffs Alexander III (can. 1 Conc. Turonense, cap. 8, X, III, 5), Urban III (ibid., cap. 8), Innocent III (7 X, III 19) prohibited private benefice exchanges and required, for their validity, a just cause recognized by the bishop; while there were other laws against simoniacal and fraudulent exchangers. Clement V declared null every conferral of benefices made to persons other than the exchangers (Clem. III, tit. V). Gregory XIII, with the const. Humano of 5 Jan. 1584, ordered that the benefice exchange be published according to law. This law was confirmed by Benedict XIV with the const. Ecclesiastica of 25 June 1746. The CIC is inspired almost entirely (the obligation of publication is missing) by the ancient discipline. For the validity of the benefice exchange there is required:
1) a just cause, which must be the utility or necessity of the Church in the judgment of the Ordinary or a different cause (therefore also the utility of the exchangers, provided it always redounds, at least indirectly, to the good of the Church: can. 1487 § 1); 2) that the benefice exchange not be carried out to the detriment of those concerned and be done with the consent of the patron, if it is a question of a benefice of the right of patronage (can. 1487 § 1); 3) that it be done with the intervention of the legitimate Superior, which will be: the Holy See if the benefice is reserved (can. 1487 § 3), the Ordinary (but not the vicar general or capitular without 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, who may however make use of a procurator, provided he is duly authorized. 4) So that there be no danger of simony, which in the case would be of ecclesiastical law, the benefice exchange must be made without imposition of any burden, without any reservation of fruits, not even in the case that the benefices are of unequal value (can. 1488 § 1). The benefice exchange, even if those concerned previously negotiated it, derives its value from the moment of the Ordinary's approval (can. 1487 § 2). Only then do the exchangers acquire, according to some a ius in rem with respect to the new benefice, according to others a ius in re.
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Innocenzo Parisella