Folia Canonica 5. (2002)

STUDIES - Jobe Abbass: Alienating Ecclesiastical Goods in the Eastern Catholic Churches

ALIENATING IN THE EASTERN CATHOLIC CHURCHES

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the Eastern Catholic Churches. Neither CCEO canon 1042 nor its predecessor canon 283 in Postquam apostolicis litteris (PAL)'3 speak of alienation proprie dicta that would provide any basis for distinguishing between alienation in a strict as opposed to a broad sense. Simply stated, then, alienation is the transfer of ownership. Although a broader meaning cannot be attributed to alienation, it is correct to say that the canonical norms to be observed in the alienation of ecclesiastical goods have a broader application precisely in relation to those CCEO canon 1042 (CIC canon 1295) transactions that can worsen the patrimonial condition of a juridic person.13 14

Now, do the words “can worsen the patrimonial condition of a juridic person” mean to restrict the kind of transaction covered by CCEO canon 1042 (CIC c. 1295)? With respect to the Latin Code, Kennedy argues that any determination regarding a transaction to come within the scope of canon 1295 has to be made in view of its likely impact on the general financial condition of the juridic person. He states: “Nor is it sufficient that there be a purely theoretical possibility of harm; based on an examination of the proposed transaction in the concrete, it must appear to constitute a realistic danger of worsening the economic well-being of the public juridic person.”15 However, it would seem that a canon 1295 transaction need not always involve a risk of financial loss for the juridic person. For example, in the handover of administration of an ecclesiastical university to a lay board, the juridic person concerned actually faces loss of control if reserved powers are not kept. Such a handover qualifies as a canon 1295 transaction since it constitutes a realistic danger that “can worsen the patrimonial condition of a juridic person.”16

13 Pius XII, mp. Postquam apostolicis, 9. II. 1952, in AAS 44 (1952) 65-150. PAL canon 283 stated: “Those things which are established in cann. 279-282 regarding alienation are also to be observed in any transaction which, by the very nature of the transaction, can worsen the condition of the Church.”

14However, the distinction between alienation in a strict/broad sense also seems to have been made in interpreting the new Eastern norms. See: Mitrofan, Les biens de l’église (nt. 4), 439. The author states: “In the proper sense, alienation is the cessation of ownership of a thing or a right, by sale or by gift. In a wider sense, such as understood in canonical legislation, alienation extends to every act, operation or transaction that can modify or prejudice the patrimonial situation of a person.” Also: Coppola, Beni temporali (nt. 4), 863. The author states: “In effect, the notion of alienation can refer either to a contract by which ownership of a thing is transferred to another owner (alienation in the strict sense), or to any act, operation or transaction which can worsen the patrimonial situation of the juridical person (alienation in the broad sense).”

15 KENNEDY, Temporal Goods (nt. 4), 1504. See also: J.-P. SCHOUPPE, Elementi di diritto patrimoniale canonico, Milan 1997, 136. The author states: “Not dealing with a theoretical criterion, it will be necessary to examine the transaction and evaluate in the concrete if it is effectively in a position to worsen the patrimony of the juridic person.”

16 For more detail regarding possible “loss of control” transactions, see Morrisey, Alienation (nt. 9), 311-314.