Vacancy of the Ecclesiastical Office

VACANCY OF THE ECCLESIASTICAL OFFICE. - It occurs when an ecclesiastical office lacks a holder. It can be de iure, when no legitimate holder of the office exists, even if in fact someone has unlawfully taken possession of it or exercises its functions, and de facto, when no one exercises the functions of the office or has taken possession of it, regardless of whether a holder has been appointed or not. The vacancy of an office can also be de iure and at the same time de facto, if both circumstances occur, that is, in the sense that the office vacant de iure is not unlawfully occupied by anyone. As a rule, in canon law, when one speaks of vacancy in the technical sense, reference is made to vacancy de iure, and it is therefore this that is treated here.

The causes that determine a vacancy are: a) the death of the holder (cann. 430 § 1 and 1438); b) a voluntary act, such as resignation and, for beneficed offices, dimissio and permutatio, and likewise translatio libera and accepted amotio; c) the law or the pronouncement of a legitimus superior in determined cases: renuntiatio tacita or lapse, privatio (cann. 192 and 2298), amotio (cann. 2147-61), translatio coacta (cann. 193 § 2, 2163). In the case of appointment to a temporary ecclesiastical office, the vacancy will occur through lapsus temporis praefiniti, or through the expiration of the power of the grantor, or again through revocation by the latter (can. 183).

The absence of the physical person who is the holder of an ecclesiastical office creates a particular juridical condition for that office, in the sense that the office, while continuing to exist, nevertheless assumes another aspect, so juridically significant that canon law regulates its regime with special rules. The peculiarity of the state of vacancy is given by the condition of an office left without a holder: the munus remains unchanged, but it lacks the recipient who, with energy and strength for the efficiency of the office, would put it into exercise and make it living and operative. By defining it as vacant, one wishes to highlight a particular, abnormal phase in the existence of the office, a phase characterized by the application of the principle laid down in can. 436, "sede vacante nihil innovetur," and consequently normally marked, depending on the case, by a limited or very limited exercise of the powers to be carried out. The munus proper to the ecclesiastical office that is vacant is provisionally entrusted by law to a different subject, designated by it not with the juridical title of holder, but with another designation, so that his activity is distinguished from that carried out in sede plena.

The exercise of the power of jurisdiction attributed to an ecclesiastical office, as a rule, does not come to a complete halt during a vacancy, with the exception of the case of a vacancy of the Apostolic See, which is easily explained if one keeps in mind the characteristics of the pontifical power, namely that it is primatial, infallible and the expression of an absolute regime. The exercise of such power must be considered an exclusive attribute of the person of the Pontiff, so that in sede vacante it must necessarily remain inactive: the College of Cardinals - in accordance with the current constitution Vacantis Apostolicae Sedis of Pius XII (8 Dec. 1945), and likewise with the previous constitutions abrogated by it - will provide only for electing the successor and for governing the Church as regards urgent affairs and those of ordinary administration, the handling of which is not reserved by law to pontifical competence. As a rule, however, among the other major offices, that is, those whose holders have the power of ordinary jurisdiction in the external forum, namely episcopal or quasi-episcopal power, such as the offices of metropolitan, residential bishop, and major superior of an exempt clerical religious order, the exercise of the powers of an office does not remain entirely inactive in sede vacante. And indeed, if one thinks, for example, of the typical ecclesiastical office, the diocese, in it every activity referable to the rank of bishop in the hierarchy of order ceases, while, on the basis of can. 435 § 1, the powers inherent in the ordinary "episcopi iurisdictio in spiritualibus et temporalibus" belong first to the Chapter and then to the capitular vicar, with the exception of those acts expressly forbidden by law that bring about a change in the state and patrimony of that diocese.

Among the minor ecclesiastical offices, such as, for example, the parish, the aforementioned principle does not find analogous application, and in fact the vicar economus who governs the parish in case of vacancy (cann. 471-78) has the plena potestas paroecialis, that is, the integral care of souls (can. 451 § 2, n. 2), so much so that, having duties identical to those of the parish priest, he is equated with him in all rights and duties and included by the legislator under the designation of parish priest.

The state of vacancy of an ecclesiastical office makes it necessary to establish to whom the fruits of the relevant benefice, accrued during this period, belong. Can. 1480, which provides for the case in which the benefice has been held during the year by more than one holder, establishes that the revenues, after the emoluments and burdens of the current year have been computed, must be divided, in proportion to the service rendered, between the successor in the beneficed office and the predecessor, represented, if he has died, by his heirs. However, other criteria of distribution are also admitted, whether in use or by legitimate custom (as when it is a matter of crops whose fruits are biennial or even at longer intervals, in which case the computation covers the entire cycle from one harvest to the next), or by special statutes. The "fructus intercalares" or "medii temporis," that is, those accrued during the vacancy of the beneficed office, unless there is a legitimate custom of devoting the net revenue to the treasury of the diocese, are destined half to increasing the benefice's endowment and half to the church or the sacristy of the church where the benefice is erected. The Lateran Concordat recognizes, in art. 26, the norms of canon law concerning the administration and enjoyment of the revenues of vacant benefices; nevertheless, the law implementing the Concordat for the patrimonial part, 27 May 1929, no. 848, in art. 25, provides that the allowances computed by the Fund for Worship shall run from the ecclesiastical provision and therefore even before possession. This unilateral provision of the State does not, however, derogate from the canonical principle that the fruits must be received from the moment of taking possession, and thus the beneficiary must return to the mass of intercalary fruits the portion of the allowances corresponding to the period running from appointment to possession.

Lorenzo Spinelli