RENUNCIATION (CANON LAW). – This is a form of the exercise of the power to dispose of rights. It consists in the pure and simple abandonment of a subjective right, without, however, any intention of transferring it to another. When such an intention is absent, there is therefore true renunciation, which, as abdicative renunciation, is opposed to 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 exercising that power are the existence of the subjective right and its belonging to the holder of the power of renunciation.
In the Church’s legal order, the institution of renunciation concerns principally benefice law and procedural law.
1) Among other things, an ecclesiastical benefice (or office) becomes vacant as a result of renunciation, which is the voluntary declaration by its holder that he is leaving the benefice, accepted by the ecclesiastical authority (canon 189 § 1). This authority—which is usually the one that conferred the benefice—may not accept a renunciation that is not based on a just and proportionate cause, and must reply to the resigning party within one month; the renunciation takes effect after acceptance. If the renunciation is conditional, it will not become effective until the condition has been fulfilled, which in this matter is always regarded as suspensive. In particular, for cardinals, ordinaries, and exempt prelates, the pope is competent to accept the renunciation; for others, it is the Ordinary and the prelate with episcopal jurisdiction. The renunciation must be made either in writing or orally before two witnesses; it may also be effected through an agent furnished with a special mandate.
The CIC, moreover, expressly provides in canon 188 for cases of presumed or tacit renunciation. These are: religious profession, failure to take possession of the office within the prescribed period, apostasy, marriage, even merely civil marriage, voluntary entry into military service, abandonment of ecclesiastical dress, violation of the obligation of residence, and acceptance of a benefice incompatible with the previous one (v. INCOMPATIBILITÀ DEI BENEFICI). For the renunciation to be legitimate, it must be free, that is, unaffected by violence and grave and unjust fear, substantial error, or fraud. Every beneficiary, provided that he is compos sui and unless expressly prohibited by law (canon 184), is qualified to exercise the power of renunciation.
The object of renunciation may be any ecclesiastical benefice, regardless of whether it is simple or one involving pastoral care, major or minor, collative or elective, provided that the renunciation does not prejudice vested rights. It should be borne in mind, however, that a cleric in sacris may not renounce the benefice that constituted the canonical title for his ordination unless he substitutes another title for it or proves that he possesses other means of support.
2) In the procedural field, the most important form of renunciation is renunciation of the proceedings. This occurs when the plaintiff declares that he wishes to bring the proceedings to an end without obtaining a judgment on the merits (canon 1740 § 1). The most notable difference between lapse of proceedings and renunciation lies in the fact that, in the case of renunciation, the party who withdraws remains liable to the other party for the costs of the proceedings. Both lapse of proceedings and renunciation of the proceedings sacrifice the proceedings but not the action, and therefore differ from renunciation of the action, which in turn requires no acceptance and bars any future proceedings. Likewise, renunciation of the proceedings can affect the substantive relationship submitted for adjudication only indirectly, insofar as renunciation extinguishes the substantive effects of the claim. Where there is joinder of parties, renunciation is subjectively divisible.
The conditions that must be observed for there to be a valid renunciation of the proceedings or of procedural acts in general are: a) that it be made by a person capable of disposing of his own rights, so that those who appear in court on behalf of others (whether natural or juridical persons) may not renounce the proceedings unless the forms relating to authorization to appear in court are observed (cann. 1648 ff.) and, in any event, subject to observance of those prescribed by law for acts exceeding ordinary administration, while agents require a special mandate (canon 1740 § 2; cf. cann. 1648, 1649, 1653, 1736, and 1741); b) that it be accepted, at least tacitly, namely by the opposing party’s failure to challenge it, and admitted by the judge; c) that the renunciation be made by an instrument in writing and signed by the party or by a special agent (this being a requirement ad solemnitatem).
Renunciation may be made at any stage and level of the proceedings,