RENUNCIATION (CANON LAW). - It is a form of manifestation of the power of disposition over rights. It consists in a pure and simple abandonment of a subjective right, without, however, the will to transfer it to others. When such a will does not exist, there is therefore renunciation properly so called, which is contrasted, as abdicative renunciation, with that which entails or makes possible the acquisition of the same right by others and which is called translative renunciation.
The holder of the power of renunciation is the holder of the subjective right that is the object of the renunciation itself, and the conditions or prerequisites for the exercise of that power are the existence of the subjective right and its belonging to the holder of the power of renunciation.
In the order of the Church the institution of renunciation concerns predominantly the benefice right and the procedural right.
1) Among other things, an ecclesiastical benefice (or office) becomes vacant by effect of renunciation, which is the voluntary declaration of leaving the benefice made by its holder and accepted by the ecclesiastical authority (can. 189 § 1). This authority - which is for the most part the one that conferred the benefice - cannot accept a renunciation that is not based on a just and proportionate cause and must give a response to the resigning party within one month; the renunciation will take effect after acceptance. If the renunciation is conditional, it will not achieve its effect until the condition has been fulfilled, which in this matter is always considered suspensive. In particular for cardinals, ordinaries and exempt prelates, the competent authority to accept the renunciation is the pope; for others it is instead the Ordinary and the prelate with episcopal jurisdiction. The renunciation must be made either in writing or orally before two witnesses; it can also be carried out by means of a procurator furnished with a special mandate.
Moreover the CIC expressly provides in can. 188 cases of presumed or tacit renunciation. These are: religious profession, failure to take possession of the office within the prescribed term, apostasy, marriage even merely civil, voluntary assumption of military service, abandonment of the ecclesiastical habit, violation of the obligation of residence and acceptance of a benefice incompatible with the previous one (v. INCOMPATIBILITY OF BENEFICES). For the renunciation to be legitimate it is necessary that it be free, that is not vitiated by violence and grave and unjust fear, by substantial error and by fraud. Every beneficiary, provided he is compos sui, and save for an express prohibition of the law (can. 184), is a fit subject to exercise the power of renunciation.
The object of the renunciation can be any ecclesiastical benefice, it matters little whether simple or curate, major or minor, collative or elective, provided that the renunciation does not impair acquired rights. It should be borne in mind, however, that a cleric in sacris cannot renounce the benefice that constituted the canonical title for his ordination, unless he substitutes another title for it or demonstrates that he possesses other means of subsistence.
2) In the procedural field the most important renunciation is the renunciation of the suit. It occurs when the plaintiff declares that he wishes to put an end to the process without obtaining a judgment on the merits (can. 1740 § 1). The most notable difference between peremption and renunciation lies in the fact that in the case of renunciation the party who withdraws remains bound toward the other party for the costs of the trial. Both peremption and renunciation of the suit sacrifice the process but not the action, and therefore they are distinguished from renunciation of the action, which in turn does not need acceptance and precludes any future proceeding. Likewise only indirectly can renunciation of the suit influence the substantive relationship brought into judgment, inasmuch as with the renunciation the substantive effects of the claim cease. The renunciation, where there is joinder of parties, is subjectively divisible.
The conditions that must be observed for there to be a valid renunciation of the suit or of acts in general are: a) that it be made by a person capable of disposing of his own rights, so that those who stand in judgment for others (whether natural or juridical persons) cannot renounce the suit unless the forms relating to authorization to stand in judgment are respected (cann. 1648 ff.) and in any case save for the observance of those prescribed by law for acts exceeding ordinary administration, while procurators require a special mandate (can. 1740 § 2; cf. cann. 1648, 1649, 1653, 1736 and 1741); b) that it be accepted, at least tacitly, that is by the fact of not being challenged by the opposing party, and admitted by the judge; c) that the renunciation be made by a written act signed by the party or by a special procurator of his (a requirement demanded ad solemnitatem).
The renunciation can be made at any stage and grade of the cause, provided that the contestation of the suit has occurred, since before this the judgment is not considered yet perfected, and provided that the definitive sentence has not been pronounced, and it is made - through the chancery - to the judge, who communicates it to the other party, setting for the latter a term to declare whether he accepts the renunciation or not; after which the judge, having resolved according to the incidental procedure any questions about the validity of the renunciation, records it for all effects by decree. Like any juridical act, the renunciation too can be vitiated by defects that invalidate it according to the general principles (fraud, fear, etc.). While in causes of private interest the judge always admits the renunciation, in those of public interest both the promoter of justice and the defender of the bond, where they are not already participating in the judgment, can be deputed to substitute the plaintiff in pursuing the suit.
The object of the renunciation must be carefully evaluated by the judge when he examines its regularity in order to admit it, since the effects of the renunciation are more or less grave according to the cases. It suffices to think of the renunciation of the suit of appeal, which entails the passage into judgment (as with peremption) of the appealed sentence, thus implicitly prejudicing the action. As regards the acceptance of the renunciation, it can reasonably be dispensed with where the acts are of interest to no one but the renouncing party (for example: a delay granted to him to produce his testimony). Besides renunciation of the suit there is renunciation of all or of individual procedural acts (can. 1740 § 2), which latter renunciation can occur, unlike that of the suit, both on the part of the plaintiff and on the part of the defendant. In the case of the various procedural acts there finally occurs tacit renunciation every time that certain activities provided for by the CIC are not carried out (for example, can. 1788) or indeed conduct contrary to those acts is adopted.
3) Finally, beyond those considered thus far, three other cases of renunciation specifically provided for by the CIC merit particular mention, namely renunciation of the right of patronage (v.), renunciation of privileges and renunciation of one's own goods by a religious before solemn profession. a) The total or partial renunciation of the rights of a patron cannot prejudice the rights of any co-patrons (can. 1470 § 1, n. 1). b) A private individual cannot renounce a privilege granted to a determined community or to a determined function or to a determined place; nor can a community or a class renounce privileges granted to them where prejudice to the Church or to others derives from the renunciation (can. 72 §§ 3 and 4). c) Before solemn profession the professed must make the renunciation of his own goods; this renunciation, however, is conditional, inasmuch as it will be operative and will oblige him also to perform the acts necessary for it to obtain civil effects (can. 581 § 2) only when the profession has been fulfilled (can. 581 § 1).
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Fernando Della Rocca