Folia Canonica 5. (2002)
STUDIES - Jobe Abbass: Alienating Ecclesiastical Goods in the Eastern Catholic Churches
130 JOBE ABBASS According to Kennedy, though, the test for applying canon 1295 is whether or not a transaction can realistically worsen the financial condition of a juridic person. This interpretation, which calls for an element of fiscal calculation, seems to require more than the canon intends. Can the calculation of a relative likelihood of harm be realistically made, for example, after the attacks of September 11, 2001, which crippled or destroyed throngs of previously thriving civil corporations? Even in the ecclesiastical sphere, is the calculation very dependable in the face of the recent sex abuse scandals which have impoverished or bankrupted dioceses across the United States? Nowadays, it just seems that the very measure of what realistically is a “purely theoretical possibility of harm” needs constant revision. In any event, it seems clear that CIC canon 1295 (CCEO c. 1042) objectively intends that, when transactions such as loans, leases and other liens involve sums that exceed those defined at law, then the canons regarding alienation will apply. It will be the competent authorities mentioned in those norms who will decide whether or not to consent to the transaction while also taking into consideration its likely impact on the overall financial condition of the juridic person concerned. 3. Alienation and Required Consent a) General Rules. Applying the general norm (CCEO c. 934 §2,1 ; CIC c. 127 §2,1) which invalidates juridic acts placed without the required consent, CCEO c. 1035 §1,3 (cf. CIC c. 1291) establishes that the alienation of ecclesiastical goods, which are designated as part of a juridic person’s stable patrimony, requires, in cases prescribed by law, written consent of the competent authority, without which the alienation is invalid. Apart from the case of religious institutes (cf. CCEO c. 1036 § 1,3; CICc. 638), both Codes identify the bishop as the competent authority, acting with the consent of the finance council and the college of consultors, for an alienation whose value falls between the minimum and maximum established, by the synod of bishops or the Holy See, as the case may be, in relation to the Eastern Churches, or by the conference of bishops with respect to the Latin Church {CCEOc. 1036 §1,2&3; CIC c. 1292 §1). If the alienation concerns the goods of the eparchy (diocese), the bishop needs the consent of the same finance council and college of consultors (CCEO c. 1036 §1, 1; CIC c. 1292 §1). In the alienation either of goods of a juridic person subject to the bishop or of goods of the eparchy (diocese) itself, consent is also required of the interested parties (CCEO c. 1039;17 CIC c. 1292 §1). 17 Strangely enough, canonists have not identified the parallel between CCEO c. 1039 and CIC c. 1292 §1 regarding the consent “of those concerned” (eorum quorum interest). See C.G. Fürst, Canones-Synopse zum Codex Iuris Canonici und Codex Canonum
