Scholion. On the Alienation of Ecclesiastical Things

I. The matter about which the law is concerned. The Church has subjected to special rules the alienation of ecclesiastical immovable or movable things which can be preserved by being preserved, or kept in their substance (can. 1530). It is said:

1. Alienation. Under the name of alienation here are included both alienation properly so called and every contract by which the condition of the Church can become worse (can. 1533). Alienation properly so called includes: donation, exchange, sale, the cession of a right, for example of a credit, lawsuit, or action already acquired. To the contracts by which the condition of the Church can become worse are referred: hypothec, pledge, usufruct, emphyteusis, servitude. Likewise, under the old law, a long-term lease; but now leasing seems exempt from the rules of alienation, since by canon 1541 it is subjected to distinct rules.

The norms soon to be set forth also bind that alienation which takes place between two ecclesiastical moral persons.

2. Of ecclesiastical things; under this name come things which belong to an ecclesiastical moral person (n. 786).

3. Which can be preserved by being preserved, or which are not consumed by first use. Things are not touched by these rules which must be consumed or alienated lest they perish, or which have no use unless they are alienated: thus money. Hence the rules to be assigned do not govern, for example, the payment of a debt by means of money, the first investment of money, money given as a loan; nor, as it seems, the exchange of securities into others. "And if money destined for the building of a church is meanwhile profitably invested, it will not be thought to be an alienation, nor will the simple sale of those securities, so that the money obtained may be able to serve for the building."¹

¹ Vermeersch, loc. cit., n. 852.

II. The statutes of the law. 1. In order that alienation may take place, with due regard for the prescription of canon 1281, § 1, these are required:¹ 1° an appraisal of the thing, made in writing by upright experts; 2° a just cause, that is, urgent necessity, or evident utility of the Church, or piety; 3° the permission of the legitimate Superior, without which the alienation is invalid. - Other suitable precautions also, to be prescribed by that same Superior according to diverse circumstances, are not to be omitted, so that damage to the Church may be avoided (can. 1530).

2. The thing must not be alienated for a lower price than that which is indicated in the appraisal. - Let the alienation take place by public bidding, or at least let it be made known, unless circumstances suggest something else; and let the thing be granted to him who, all things considered, has offered more. - Let the money received from alienation be invested cautiously, safely, and usefully for the advantage of the Church (can. 1531).

3. The legitimate Superior, of whom under 1, is:

a) If there is question of things which do not exceed the value of one thousand lire or francs, the Ordinary of the place, after the administrative Council has been heard, unless the matter is of very slight importance, and with the consent of those whose interest is involved (can. 1532, § 2).

b) If there is question of things whose price is contained between one thousand lire and thirty thousand lire or francs, the Ordinary of the place, provided the consent has been added both of the Cathedral Chapter, of the administrative Council, and of those whose interest is involved (can. 1532, § 3).

c) If there is question either of things which exceed the value of thirty thousand lire or francs, or of precious things,² the Apostolic See is the legitimate Superior (can. 1532, § 1).³ But the permission of the Holy See is also required "for alienating in the manner of one thing ecclesiastical things of the same person which, taken together, exceed the value of thirty thousand lire or francs."⁴ If, however, the experts lawfully appraised the price below 30,000 lire, and, after bidding has been announced or on another occasion, a higher price is offered, the consent of the Apostolic See is not required for carrying out the alienation.⁵

d) If there is question of alienating a divisible thing, in seeking permission or consent for the alienation, the parts previously alienated must be expressed; otherwise the permission is void (can. 1532, § 4).

4. The Church has a personal action against him who has alienated ecclesiastical goods without the due solemnities, and against his heirs; but a real action, if the alienation was null, against any possessor whatever, saving the right of the buyer against the one alienating badly. - Against an invalid alienation of ecclesiastical things there can act the one who alienated the thing, his Superior, the successor of each in office, and finally any cleric enrolled in that church which has suffered damage (can. 1534).

5. With the nullity of the act and the obligation remaining firm, even to be urged by censure, of restoring goods illegitimately acquired and of repairing damages perhaps inflicted, one who has presumed to alienate ecclesiastical goods, or to give consent in alienating them against the prescriptions of can. 534, § 1, and can. 1532, according to can. 2347:

a) If there is question of a thing whose price does not exceed one thousand lire, let him be punished with suitable penalties by the legitimate ecclesiastical Superior.

b) If there is question of a thing whose price is above one thousand, but below thirty thousand lire, let a patron be deprived of the right of patronage; an administrator, of the office of administrator; a religious Superior or economus, of his proper office and of capability for other offices, besides other suitable penalties to be inflicted by Superiors; but let an Ordinary and other clerics who hold an office, benefice, dignity, or function in the Church pay double in favor of the church or pious cause harmed; let other clerics be suspended for a time to be defined by the Ordinary.

c) But if the apostolic beneplacitum prescribed in the mentioned canons has knowingly been omitted, all guilty persons in any way, whether by giving, by receiving, or by giving consent, are moreover subject to excommunication latae sententiae reserved to no one.

Note. As regards religious, see the treatise on the duties of religious.

¹ Canon 1281 states: notable relics or precious images, and likewise other relics or images which are honored with great veneration by the people in any church, cannot validly be alienated nor perpetually transferred into another church without the permission of the Apostolic See (§ 1). Notable relics of Saints or Blessed are the body, head, arm, forearm, heart, tongue, hand, leg, or that part of the body in which a martyr suffered, provided it is whole and not small (§ 2).

² Precious things are those "which have notable value by reason of art or history or material" (can. 1497, § 2). The Sacred Congregation of the Council, February 14, 1922, in response I, declared that for the alienation of things precious in any way the beneplacitum of the Holy See is required (cf. A.A.S. 1922, p. 160).

³ The Apostolic See is understood as the Sacred Congregation of the Council, for seculars; the Sacred Congregation of Religious, for religious institutes and Third Orders; the Sacred Congregation of Propaganda Fide, for regions subject to it, or also for religious institutes and associations which are placed under its full jurisdiction; the Sacred Congregation for the Oriental Church, if the goods belong to moral persons of that rite, insofar as they are bound by these laws; the Sacred Consistorial Congregation, if the goods are of dioceses; the Sacred Congregation of Seminaries and Universities of Studies, if the goods belong to a Seminary.

⁴ P.C., July 20, 1929 (A.A.S. 1929, p. 574).

⁵ P.C., November 24, 1920 (A.A.S. 1920, p. 573 sq.).