Folia Canonica 5. (2002)
STUDIES - Jobe Abbass: Alienating Ecclesiastical Goods in the Eastern Catholic Churches
ALIENATING IN THE EASTERN CATHOLIC CHURCHES 131 When the value of an alienation exceeds the maximum sum established or it concerns precious goods or goods given to the Church by reason of a vow, the consent of the Holy See is also needed (CCEO c. 1036 §4; CIC c. 1292 §2).18 However, in a significant application of the principle of subsidiarity in favor of the Eastern patriarchal Churches, the required consent for these alienations within the patriarchal territories is given in all cases by the bishop and/or patriarch with the consent either of the permanent synod or the synod of bishops {CCEO c. 1036 §§2-3). Separate norms in CCEO canon 1037 govern the alienation of ecclesiastical goods of a patriarchal Church or of the patriarch’s own eparchy.19 b) Informed Consent {CCEO c. 1038; CIC c. 1292 §§3-4). Like CIC canon 1292 §4, CCEO canon 1038 § 1 establishes that those whose consent, counsel or confirmation20 * * * * * * * 28 is required to alienate ecclesiastical goods are to be thoroughly informed, beforehand, of both the economic condition of the juridic person, whose goods are being alienated, and of any previous alienation regarding those goods. An obvious example would involve the consent of those required to place a second mortgage against ecclesiastical goods for the purpose of a loan. If those whose consent, counsel or confirmation is needed are not informed of the previous alienation, in this case the first mortgage, then CCEO canon 1038 §2, like CIC canon 1292 §3, stipulates that the consent, counsel or confirmation are considered not to have been given, effectively invalidating the alienation. The same rule applies in the alienation of ecclesiastical property, which is divisible, if the parts previously alienated have not been mentioned to those whose consent, counsel or confirmation is needed. The fact that CCEO canon 1038, like many other Eastern canons regarding alienation, are similar to the Latin norms is not surprising. Just as the PAL largely Ecclesiarum Orientalium, Freiburg im Breisgau 1992, 180; Table of Corresponding Canons (CCEO-CIC), in CLSA, CCEO (Latin-English) (nt. 5), 746; and Tavola di Concordanza CCEO-CIC 83-CICO, in Pinto, Commento (nt. 4), 1232. 18 This is true regarding CCEO c. 1036 §4, notwithstanding the absence of the adverb “insuper” (”in addition to”), which is found in CIC c. 1292 §2. See the commentary on CCEO c. 1036 §4 in Part II. 19 See the separate treatment of CCEO c. 1037 in Part II. 20 Consent is required of those mentioned in CCEO cc. 1036, 1037 and 1039, while counsel is required of the authorities intended by CCEO c. 1037, 1 and may be needed from authorities determined in the typicon or statutes of a juridic person not subject to the eparchial bishop {CCEO c. 1036 §1, 3). It is unclear why the reference to “confirmation” remains in CCEO c. 1038. During the iter of CCEO c. 1038, the “confirmation” was added to the draft of CCEO c. 1038 since the patriarch’s confirmation was required in an initial formulation of CCEO c. 1036 §2 [see Nuntia 18 (1984) 65 (c. 108 £w)]. However, the Coetus de expensione observationum totally reformulated the proposed CCEO c. 1036 §2 and changed the patriarch’s “confirmation” into “consent” [see Nuntia 28 (1989) 131 (c. 1051 §2, 2)].
