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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he is apparently not the appropriate authority to decide whether and which type of possible action to take. Again, if a bishop, as president of a diocesan public association, sells some of its property without the consent either of the diocesan finance council, the college of consultors, or the association concerned, that bishop is evidently not the competent authority to decide on further action because of his obvious conflict of interest. In both cases, even though the parish and the diocesan association are juridic persons directly subject to the bishop, it is undoubtedly the authority above the bishop, the Holy See, that is competent to decide on the possible remedial action to take.

With respect to the same question concerning the interpretation to be given “competent authority” in CIC canon 1296, R J. Kennedy maintains that it has to be the superior authority of the one who carried out the alienation.24 Moreover, he argues that this interpretation has been confirmed by the parallel CCEO canon 1040, which states:

Whenever ecclesiastical goods have been alienated against the prescripts of canon law but the alienation is valid civilly, the higher authority of the one who carried out the alienation, after having considered everything thoroughly, is to decide whether and what type of action to be taken by whom and against whom in order to vindicate the rights of the Church.

Although Kennedy does not explain the reason for citing CCEO canon 1040 to confirm his interpretation of CIC canon 1296, it is evident that he has made recourse to that parallel Eastern norm, by way of CIC canon 17,25 since the meaning of the words “competent authority”, considered in the text and context of the Latin canon, remain doubtful. At the same time, there can be no doubt that the legislator had the same purpose and circumstances in mind when promulgating both norms. It is also conceivable that the legislator intended to clarify CIC canon 1296 when promulgating the parallel CCEO canon 1040 in 1990. Nevertheless, there is nothing, at least in the reported proceedings of PCCICOR, to confirm that the more precise reference in the Eastern norm to “the higher authority of the one who carried out the alienation” meant to clarify the doubt in the 1983 CIC canon 1296. In fact, the first reported draft (1981) of CCEO canon 1040 already referred to the “immediately superior hierarch” (Hierarchae immediate superioris).26 This not24 Kennedy, Temporal Goods (nt. 4), 1506.

15 CIC c. 17 states: “Ecclesiastical laws are to be understood in accord with the proper meaning of the words considered in their text and context. If the meaning remains doubtful and obscure, recourse is to be taken to parallel passages, if such exist, to the purpose and the circumstances of the law, and to the mind of the legislator.”

26See: Nuntia 13 (1981) 40 (c. 111). The initial reference to the “immediately superior hierarch” was changed to “higher authority” (auctoritatis superioris) to include the Holy See; see: Nuntia 18 (1984) 65 (c. 111). In its present form, CCEO c. 1040 already appeared as c. 1056 of the 1986 Schema Codicis Iuris Canonici Orientalis', see: Nuntia 24-25 (1987) 189 (c. 1056).