Alienating Church property without the apostolic beneplacitum (Can. 2347)

Sepulturae——Which consists not only of burial in consecrated ground, but in transferring the corpse to the church and therein holding a funeral service (Can. 1204). So that mere burial would not incur the censure. Canon 2347 III. Quod si beneplacitum apostolicum in memoratis Canonibus 534, sec. I, 1532 praescriptum [ad alienanda bona ecclesiastica] fuerit scienter praetermissum omnes quovis modo reos sive dando sive recipiendo sive consensum praebendo manet excommunicatio latae sententiae nemini reservata. (But if the apostolic approval prescribed in the aforesaid Canons 534 § 1 and 1532, for alienating ecclesiastical goods, has been knowingly omitted, an excommunication latae sententiae reserved to no one awaits all who are in any way guilty, whether by giving, or by receiving, or by lending their consent.)

Scienter.—Full knowledge that there is question of ecclesiastical property, that leave of the Holy See is required for its alienation, and this under censure.

Omnes.—Not only the giver and the receiver, but all whose consent is required for the transaction, and who gave it. Canon 2352 IV. Excommunicatione nemini reservata ipso facto plectuntur omnes, qualibet etiam dignitate fulgentes, qui quoquo modo cogant sive virum ad statum clericalem amplectendum, (There are punished ipso facto with an excommunication reserved to no one all persons, even though adorned with any dignity whatsoever, who in any way compel a man to embrace the clerical state,) sive virum aut mulierem ad religionem ingrediendam vel ad emittendam religiosam professionem tam sollemnem quam simplicem, tam perpetuam quam temporariam. (or a man or a woman to enter religion or to make religious profession, whether solemn or simple, whether perpetual or temporary.)

1. A certain monastery resolved to sell a certain house, which it possessed, to another monastery, which offered the price of 20,000 libellae. The negotiations of the contract had already been completed, and the Apostolic Beneplacitum was being awaited, so that the contract might be consigned to a lawful instrument and perfected. And therefore neither had the money been handed over, nor had possession of the house been handed over. Meanwhile the chapter of the cathedral church offered to the owner monastery the price of 25,000 libellae, and, the Apostolic permission having immediately been sought and obtained, it handed over the price and took possession of the house, the other monastery protesting.

Question. What is to be said in the case?

R. The later contract of the monastery with the chapter was valid and licit. It was valid, because the prior contract with the other monastery had not yet truly been a perfected and consummated contract, but only the negotiation of a contract. Negotiations concerning some contract are not the contract itself. Moreover, the purchase and sale in the case had certainly not been perfected, since, in order that it might be perfected, the Apostolic Beneplacitum to be obtained was being awaited, and the instrument had to be drawn up, not so that the contract might be perfected merely accidentally as to its form, but so that it might be perfected as to its substance. For, as is clear from the Extravagant Ambitiosae, de reb. Eccl. non alienand., renewed by the Constitution Apostolicae Sedis, no private contract of parties has firm value in this matter before the Apostolic Beneplacitum accedes to it.

It was licit, however, insofar as, namely, 1. no damage thereby came to the other monastery, concerning which there is nothing in the case; and insofar as 2. the other monastery, when the matter had become known, was unwilling to offer an equal price by first increasing its own. For by natural equity, while negotiations concerning a contract are still being had, and the contract is not yet absolute and perfected, the buyer cannot demand that the seller neglect his own notable advantage by putting after it a better opportunity of selling the thing at a much dearer price. Cf. S. C. EE. et RR., 30 April 1869, A. S. S., vol. 5, p. 362 ff.