Case 3. A Contract with a Modus

Certain Catholics in a certain town wished a certain religious Order to have a church in their town; indeed, after a large sum of money had been collected, they bought land on which a house and church might be built and handed it over to that Order by a gift between living persons. The diocesan bishop, however, although at first he neither gave nor denied consent, after the land had been handed over and the matter had been discussed with the canons, absolutely refused to give consent, so that there was no hope that the Order would come to the town. When these things became known, the donors expected that the land would be returned to them; the price of it after it had been sold, however, was retained by the Order. Hence it is asked:

1. What is a mode added to a contract, and how is it distinguished from a condition?

2. What is a gift between living persons, and can it be revoked?

3. In whom is the ownership of ecclesiastical goods, and what is to be said of their alienation?

4. What is to be said of the case?

1. What is a modus added to a contract, and how does it differ from a condition?

A modus is an obligation in justice to do something added to a contract, but the validity of the contract does not depend on the fulfilment of the modus. A condition is either precedent or subsequent. The former is an agreement that the contract shall depend on the happening of a future event. If the happening of the future event will, according to the agreement of the parties, discharge the contract, we have a condition subsequent.

2. What is a donatio inter vivos, and can it be revoked?

A donatio inter vivos is distinguished from a gift mortis causa and is irrevocable by English law.

3. Who has the ownership of ecclesiastical property and can it be alienated?

According to the common opinion the ownership of ecclesiastical property is in the community to whom it was given by the donors, whether that community be the province, the diocese, the parish, a Religious order, or some other religious corporation. It can not be alienated without the permission of the Holy See under pain of excommunication.

4. The case. Some Catholics wanted a certain Religious order to come and settle in their town. They collected a sum of money, bought a site, and presented it to the order. The bishop, however, after consulting his canons, absolutely refused his permission, so that there was no hope of the order being able to come to the town. It therefore sold the site, and kept the proceeds, although those who had presented the site expected that it would be returned to them after the bishop had refused his consent.

From the answers given to the questions above, it is clear that the order acted perfectly rightly, and indeed could not without the permission of the Holy See return the site to the donors. It was given absolutely, not conditionally, with the obligation to use it if possible for a certain purpose. Through no fault of theirs that purpose became impossible, but the site remained theirs and ecclesiastical property.