Title XLI: On Restitution to the Former Condition

Latin source headnote: If a church was enormously injured in a contract of sale or lease, it can seek restitution to the former condition against such a contract; the buyer or tenant, however, ought not to be defrauded of his price or of expenses incurred by him.

Alexander III to the Bishop of Alfano.

Your fraternity has asked us what ought to be done concerning possessions granted to laymen for a small rent. You should therefore know that, if the church has been injured and its loss is manifestly apparent, since it is not lawful for the bishop to make the condition of that church worse, and the church, by the law of a minor, ought always to be preserved unharmed, whatever is established to have been granted to its detriment ought to revert to its right and ownership. Provision must nevertheless be made that, if perhaps the tenants have improved those possessions by their expense and labour, they ought not to be defrauded of the expenses which they incurred in good faith.

Latin source headnote: A church injured through the negligence of a proctor who did not produce the church's rights is restored.

Innocent III to the Abbots of Saint George and Saint Sergius.

When our beloved sons the elect and monks of Redon came to the Apostolic See for themselves and their monastery, and our beloved son Master A. came for our venerable brother the Bishop of Vannes, we gave them our beloved son G., Cardinal Deacon of Saint George at the Golden Veil, as auditor. Before him that master alleged on behalf of the bishop that, since the monastery of Redon was situated in the diocese of Vannes and subject to the church of Vannes, the aforesaid bishop had hitherto enjoyed undisturbed possession of the subjection. But when, on the occasion of a certain election which had been held there, the parties by common assent obtained letters of commission concerning these and many other matters to our venerable brother the Bishop of Nantes and his colleagues, our beloved sons the Abbots of Mallen. and Granont, two of them, after granting adjournments at the monks' insistence, at last came to the monastery. The intruder, foreseeing their arrival, renounced the election of this kind and absented himself from the monastery.

But the judges, by apostolic authority, enjoined upon the monks that they elect a syndic or proctor who would both act advisedly and answer effectively in the monastery's cases, strictly forbidding them to elect anyone as abbot until fuller cognizance had been taken of the right which the bishop said that he had in the election of the abbot. Yet the monks, although they had elected a proctor at the judges' mandate, nevertheless, being excommunicated, presumed, contrary to their prohibition, to elect an abbot in a monastery under interdict. The bishop sought the invalidation of his election and his own restitution to the possession of which the monks had despoiled him. Then the judges, after hearing and more fully understanding everything which the parties wished to allege, after the multiple delays granted to the parties for producing both witnesses and instruments, with the witnesses received and the attestations published, pronounced a definitive sentence for that bishop concerning the aforesaid articles, quashing that election by reliance upon apostolic authority. The said master urgently sought that this sentence be confirmed by us.

To this it was answered to the contrary, among other things, that the said bishop and the Abbot of Malegio, while the Abbot of Gnanter was absent—who had been chosen by them as judge, though he had neither announced the causes of his absence nor mandated that the others proceed in the case without him—although it had been alleged by the proctor on behalf of the monks that the monastery itself belonged immediately to the Roman Church and was tributary to the Apostolic See, nevertheless began to proceed too vehemently against them. (And below:) We therefore, having heard through that cardinal the things alleged on both sides before him, and having inspected the privileges of our predecessors Leo, Gregory, and Clement, which indicate that monastery to pertain to the right and ownership of the Apostolic See, and understanding that, although the monastery's proctor negligently omitted to exhibit those privileges before the aforesaid judges, he nevertheless protested not so much his own right as ours—namely, that the monastery itself belonged immediately to the Roman Church—lest his negligence redound to the loss both of us and of the monastery, we restored the monks of Redon to a hearing. (And below:) But we have judged that the election said to have been made concordantly by the monks while the controversy upon which it depends was pending should neither be confirmed nor invalidated.

Latin source headnote: A church injured by omission of necessary proof can seek restitution to the former condition, notwithstanding the legal term precluding proof. And it can seek restitution not only against a private person but also against a church. This states the rule.

The same to the Bishops of Ely and Florence.

Having heard and understood the merits of the case in the question pending between our venerable brother the Bishop of Worcester and our beloved son the Abbot of Evesham concerning the churches situated in the vale of Evesham, which the bishop asserted to pertain to him by diocesan law, while the abbot asserted them to be wholly exempt from his jurisdiction, we clearly recognized that those churches were not withdrawn from episcopal jurisdiction by the privileges of the Roman Pontiffs, unless perhaps the vale of Evesham is that place which was endowed with liberty by two kings, namely Roe and Offa, and which Pope Celestine of good memory endowed with liberty, as is contained in his privileges. But they are proved by witnesses to have been possessed with full right by the abbots of Evesham for so long a time that the episcopal right seems to have been lawfully prescribed in them, unless perhaps the church of Worcester was vacant in the meantime for so great a space of time that, with the period of vacancy subtracted, the prescription was by no means completed. (And below:) Although, however, the case has been concluded on both sides, nevertheless, because each party omitted proof which it asserts to be necessary, we, considering that each church enjoys the law of a minor, after weighing equity, have restored each against the other for proving the omitted ground, lest either party be injured by serious loss because of negligence of this kind.

Latin source headnote: Restitution is to be granted for a just cause even to one of full age, provided that a just cause for seeking it is proved; but if it is not proved fully or half-fully, restitution is granted in a favourable cause. This states the rule.

The same to the Prior of Saint Mary at the Prisons and L., Canon of Saint Mary of Mandria.

We learned from the letters of our beloved son the Abbot of Calven. that, when our beloved sons the archpriests Ramisane and Grimol., by our delegation, had pronounced a sentence of separation between the man I. and the woman L., and, upon an appeal being interposed, we judged that cognizance of the sentence should be committed to that abbot and the Archpriest of Padua, the obstacle of any appeal being removed, that archpriest, who could not be present for executing these matters, committed his functions to his co-judge. And when the abbot had assigned a peremptory term to the parties, because the woman's party did not come at the peremptory term, the abbot himself, to whom the other co-judge had committed his functions, after diligently inspecting the allegations of the husband, confirmed the sentence pronounced by the aforesaid judges.

But after eight days, the girl's father, coming to him and learning that he had pronounced the sentence, affirmed by his own oath that a certain man, coming to him and his daughter, fraudulently presented them with false letters in that abbot's name. By these he was instructed that, because the judge could not come on the day which he had assigned, he should present himself before him eight days after the appointed term; and afterward he appealed to the Apostolic See and also supplicated. Although the fraud perpetrated in this manner is not fully established through an oath of this kind, nevertheless, in favour of marriage, from canonical benignity we have admitted the woman's supplication against the alleged fraud and restored her, as one petitioning on behalf of the marriage, to a hearing. We therefore command your discretion by apostolic writings that, taking cognizance of the cause of the former appeal according to judicial order, you are to confirm or invalidate, as shall be just, the sentence promulgated by the first judges, appeal being removed, causing what you decree to be observed by ecclesiastical censure.

Latin source headnote: A church is restored even against a sentence of the Pope. This is the first point. And the cause of restitution to the former condition ought to be tried with the parties present. This is the second point. It states these two things as regards the title.

The same to the Bishop and Chapter of Huesca.

Both from the letters of Pope Celestine of good memory, our predecessor, and from the things which in his time were transacted at the Apostolic See in your presence, brother bishop, and that of our venerable brother the Bishop of Lleida, we have understood the grave complaint of the church of Lleida, which complained both formerly and even now that it had been enormously injured by a sentence pronounced concerning certain churches by Pope Eugenius of happy memory, our predecessor. Hence, when that same Celestine, our predecessor, during the time of Pope Anastasius of pious memory, our predecessor and the immediate successor of Eugenius, while still placed in a lesser office, exercised the office of legation in the regions of Spain, he began, by delegation from Anastasius, to take cognizance of the aforesaid controversy. Alexander, the successor of Anastasius, also committed that same case to him when he again exercised the office of legation in those same regions; and he would also have terminated it with a due conclusion had an appeal not been made from him on behalf of the church of Huesca. Celestine himself frequently attested to all these things both in his letters and orally before us and our brothers.

That same Celestine, when promoted to the summit of the supreme pontificate, also committed the said controversy to our beloved son G., Cardinal Deacon of Saint Angelo, then legate of the Apostolic See, under this tenor: that, after diligently inspecting the privileges of the church of Lleida and hearing the arguments and allegations of the parties, notwithstanding the aforesaid sentence or any rescripts obtained at any time from the Apostolic See or from anyone else, whether on occasion of that sentence or in another manner, to the prejudice of the right of the church of Lleida, with all contradiction and appeal ceasing and removed both concerning the principal question and concerning an incidental one, he should pronounce definitive sentence and, committing it to execution without any difficulty, cause it to be firmly observed by ecclesiastical censure.

But because the apostolic mandate in this matter was not fulfilled by that legate or by others to whom the same case was committed under the same tenor, although the witnesses produced on behalf of the Bishop of Lleida were received, our beloved son Master A., canon of Lleida, coming into our presence, repeated the foregoing complaint in the name of the church of Lleida, urgently entreating and petitioning that through our office the already-mentioned sentence be reformed for the better and the church of Lleida be restored against it.

We therefore deliberated diligently upon that supplication with our brothers and other prudent men learned in both laws, namely canon and civil law. Some firmly asserted that, since the aforesaid C., our predecessor, appeared to have granted the benefit of restitution to the church of Lleida against the already-mentioned sentence, when, notwithstanding that sentence, he judged that the business should be committed, we also ought to admit the supplication of that church, especially because canon and civil laws agreed together in this. For by the canonical statutes it is not denied that a sentence of the Roman See can be changed for the better when either something has been obtained surreptitiously or it has decreed, by way of dispensation, to order something in consideration of ages and times or grave necessities; and according to the civil laws, princes also have permitted restitution to the former condition to be examined in their audience even against matters twice adjudged.

We perceived also, from the date of the sentence found in the register of the already-mentioned Pope Eugenius, our predecessor, that that sentence was promulgated in the first month of his pontificate, when he seemed not yet to have been fully instructed concerning the merits of that case, relying chiefly on this reason: that the privilege of Urban II produced on your behalf had been subjected to falsification. Yet, by examining its tenor closely in his register, we found it whole and altogether uncorrupted.

But although we wish the rights of the church of Lleida to be preserved unharmed, nevertheless, because we also wish to sustain your church in its justice, at last our deliberation settled upon this: whether restitution against the foregoing sentence was given or ought to be given is to be determined with the parties present, by whose assertions the merits of the causes are disclosed, in accordance with lawful enactments, so that, when we have omitted nothing among the contingent matters, neither party may have anything which it can rightly impute to us.

Therefore we command your discretion by apostolic writings that, by the feast of Blessed Luke next to come, you are to present yourselves before us either in your own persons or through a sufficient and suitable representative, to show, if you can, that the aforesaid sentence ought not to be reconsidered; or, if perhaps justice requires that it be reconsidered, you are to appear, either by yourselves or through a suitable representative, sufficiently instructed so that proceedings may be taken canonically in the principal business. You are to know for certain that, since we desire to put an end to lawsuits and, because of the great distance of the places, recourse cannot often be had to us in the foregoing question without great labours and expenses, if by the aforesaid term, which we assign to you as peremptory, you contemptuously fail to fulfil the things enjoined upon you, we shall nevertheless proceed in that business insofar as we shall be able by law.

But we wonder not a little and are disturbed that you, brother bishop, are said to have obtained confirmation of that sentence and revocation, as though surreptitiously obtained, of all the things which our often-mentioned predecessor C. did for the church of Lleida, since we can scarcely suspect concerning him that he suddenly acted contrary to his writings and assertions—which he frequently presented orally before us and our other brothers—unless he was circumvented.

Latin source headnote: A petition for restitution to the former condition against a sentence regularly suspends execution of the sentence pending the outcome of that cause of restitution. This fails if there is a presumption of malice against the person seeking restitution, namely that he seeks it in order to delay execution; in that case execution takes place after security has been given for restoration if the person seeking restitution prevails in the cause. This states the rule according to its meaning when joined with the penultimate gloss; and in this final point this text is very exceptional with respect to both laws.

The same.

Textual note: The Latin Library transcription's speciantibus has been corrected to Friedberg's spectantibus.

When a question concerning various articles had arisen between our venerable brother the Bishop of Burgos and the monastery of Oña, [and when our venerable brother the Bishop of Segovia and our beloved son T., Bishop-elect of Palencia, to whom the said case had been committed by our authority, had remitted it, sufficiently instructed, into our presence, we granted a free and benign hearing to that bishop and to the monk L., proctor of the monastery, who had come to the Apostolic See on this account. When they began to litigate principally concerning the status of the aforesaid monastery, which the said bishop alleged to pertain to him by the common law, as it was situated in his diocese—and he affirmed that the church of Burgos had enjoyed the exercise of this right throughout long-past times—while it was said on behalf of the monastery that it had from antiquity been endowed with liberty by secular princes and Roman Pontiffs and had enjoyed full liberty for a very long time, we, after hearing the allegations on both sides, at last, with the will of the parties, judged that a settlement should be providently made between them, as is contained more fully in our other letters drawn up concerning this matter.

But afterward, when the parties prosecuted the question concerning the subjection and liberty of the members of that place—namely its monasteries, chapels, cells, and priories—the said bishop specially claimed for himself four things in the aforesaid places. He said that these pertained to him by the common law, the exercise of which right he had enjoyed from antiquity, asserting that the clerics of those places were bound to attend the synods of the bishops, archdeacons, and archpriests of Burgos, to observe sentences of excommunication or interdict promulgated by them, to furnish annual procurations, and to pay individual gold pieces to a newly installed Bishop of Burgos. To strengthen his own claim, he alleged, concerning the first three articles, the common law—according to which he said that the said clerics, like the others of his diocese, were bound to the aforesaid things—and the free exercise of that right from antiquity, and, concerning the fourth, an ancient and approved custom. He said that proof concerning all these things had been furnished through depositions of witnesses. But the other party alleged to the contrary that the members of the above-mentioned monastery, like the monastery itself, had from antiquity been endowed with liberty by privileges of secular princes and the Roman Pontiffs Urban II, Paschal II, Eugenius III, and Alexander III, and had enjoyed liberty of this kind throughout long-past times, as it said was manifestly established through those privileges exhibited before us, the instrument of Victor, formerly Bishop of Burgos, and the depositions of its own witnesses.]

We therefore, having heard and understood the things which each party alleged before us, condemned the monastery of Oña concerning the four aforementioned articles, with the counsel of our brothers, as justice required. But after sentence had been pronounced, the monastery's proctor, in the name of the monastery, sought restitution to the former condition in order to prove prescription both concerning the four aforementioned articles and concerning certain tithes acquired by the monastery through a settlement and sought on behalf of its churches and tenants. We wished to terminate the controversy concerning these tithes by the decision of a sentence, and the case concerning them had been concluded before the above-mentioned judges. And when there had been litigation before us for some time concerning this, we, after prior deliberation, judged that restitution to the former condition for proving prescription should be granted to that proctor in the name of the monastery, both concerning the four aforementioned articles and concerning the controversy over the tithes, [giving a mandate by our letters to you, brother Bishop of Zamora, and to our beloved sons Masters Maurice, Archdeacon of Toledo, and Michael, canon of Segovia, that you receive the witnesses whom the monastery's party shall judge should be produced to prove lawful prescription concerning the four often-mentioned articles and the issue of the tithes, or whom the bishop shall judge should be produced to prove interruption; and, if it proceeds with the will of the parties, you are to terminate the case itself with a due conclusion, appeal being removed; otherwise, you are to remit it to us sufficiently instructed, fixing for the parties a suitable term on which they are to present themselves again before us to receive sentence, with the Lord's favour.]

But lest, through contrived malice, as seemed from several [certain] presumptions, it happen that the effect of the sentence be impeded to the bishop's loss, and lest the monastery incur loss through execution of the sentence because of various suspicions, we, after weighing equity, judged that provision should be made by law so that, before all else, the above-mentioned sentence pronounced by us be committed to execution [by you]. (And below:) We nevertheless will and command that you receive suitable security from the bishop himself that, if the monastery prevails in that case [by sentence], he will restore to the aforesaid monastery all the things which in the meantime he shall have received on occasion of that sentence. [Given at the Lateran, on the eighth day before the Kalends of May, in the thirteenth year of our pontificate, 1210.]

Latin source headnote: After a peremptory term a church is not heard under the common law; it is heard, however, through the benefit of restitution to the former condition.

Honorius III to the Archbishop and Chapter of Braga.

When issue had solemnly been joined before Pope I. of happy memory, our predecessor, between our venerable brother the Archbishop of Toledo and you, brother archbishop, concerning the primacy, a peremptory term was assigned. (And below:) But after the appointed term had elapsed, following no slight wait, your proctors appeared; but because, as they said, they had not brought the depositions of the witnesses and other documentary supports, they urgently requested a delay. But after we had ruled against them concerning the delay sought, at last they petitioned that a delay be granted to the church of Braga for instruction of the case through the aid of restitution to the former condition, exhibiting a special mandate from you concerning this. We, with the counsel of our brothers, have judged that this should be granted to you through the benefit of restitution until the octave of Pentecost next to come.

Latin source headnote: A minor is restored concerning what he contracted or omitted if he proves that he was thereby injured and is within the periods for seeking restitution.

Gregory IX.

Master William, appearing in our presence for himself and his brother I., canon of Parros., showed in a petition presented to us that, when they were of minor age and their mother, whose successors they are, had been removed from human affairs, the late William, their father, sold to certain persons, for a certain quantity of money, certain possessions common to both; and, so that a sale of this kind might have the strength of firmness, he emancipated them and caused them to consent to the contract. Therefore he supplicated that we command either that the same sale be declared null, or—since they still remain within the time granted for obtaining the benefit of restitution to the former condition, and under an approved custom of the municipality of Parros. the right of offering the price to the buyers concerning the other share belonged to them as the nearer persons within a year and a day from the time of the contract, which they have hitherto omitted—we would deign, through the same benefit, to give them relief concerning both matters, since they are known to have been injured not slightly in this and are prepared to offer the price to the buyers of that share or their successors. Therefore we command that, if you find the foregoing to rest upon the truth, you take care either to declare the aforesaid sale null as regards the share devolving upon them from the maternal succession, if the due legal solemnity was omitted in it; or, if perhaps it intervened and it is established that they were injured, you are to endeavour by our authority to restore them to the former condition both concerning that share and concerning the remaining share, provided nevertheless that they shall judge that what they offer ought to be done.

Latin source headnote: Restitution to the former condition is to be sought from an ordinary who possesses administrative authority, or from one delegated by him, whether this cause was specially delegated or arises incidentally in a cause generally committed to him. It ought not, however, to be sought from an ordinary who does not possess administrative authority or from his delegate, unless it arises incidentally in a cause. An arbitrator does not take cognizance of a cause of restitution and cannot be assumed in major causes.

The same.

A cause of restitution to the former condition can be tried and concluded before ordinary judges possessing administrative authority or persons delegated by them, whether this has been specially mandated to those delegates or a question of this kind happens to arise in the business committed to them. But persons delegated by ordinaries who do not possess administrative authority, but only the faculty of judging, or arbitrators, cannot take cognizance of this cause unless it has arisen incidentally before them. In a matrimonial, status, or criminal cause also, since they require higher judges, an arbitrator cannot be assumed.

Latin source headnote: Restitution denied to a church is not thereafter granted to it unless for a new cause; it is nevertheless restored for appealing from the sentence of denial.

The same.

When the benefit of restitution to the former condition has been denied to your church in another trial, it appears that restitution can be denied to that same church, except for an omitted appeal, unless it is to be admitted to a benefit of this kind because of new defences.