The Purposes of the Church's Temporal Goods (Can. 1254 § 2 CIC/83)

Contents

1 Introduction

2 An Overview of the Historical Development of the Purposes of Ecclesiastical Goods

3 The Demand of the Second Vatican Council: Strict Appropriation of Ecclesiastical Property

4 Different Purpose Declarations in CIC/17 and CIC/83

5 Appropiation in the Legislative Reform

6 The Concept Used in CIC/17 and CIC/83

7 Ecclesiality of the Purposes Mentioned in the Applicable Law

8 Content of the Purposes Specified in Can. 1254 § 2 CIC/83

9 Ranking of these Purposes

10 Direct or Indirect Use of Assets for their Intended Purpose

11 Limiting Function of Asset Purposes

12 Appropriated Legal Unity of Ecclesiastical Goods

13 Conclusion

1 Introduction

1 The allegation that the goods of the Roman Catholic Church are not always administered and used according to their ecclesiastical purpose can be heard time and again, especially in the German-speaking countries, and is fueled by corresponding financial church scandals that have become public knowledge. The general prevailing view is that the Church's goods should be used for conducting worship services, the construction and maintenance of places of worship (churches, chapels), the remuneration of church employees and – above all – charitable purposes. This raises the question of whether this view coincides with the canonical approach.

2 An Overview of the Historical Development of the Purposes of Ecclesiastical Goods

2 From the fifth century onward, it was widely established that the church's income was divided by four namely the quarter for the poor, the quarter for the church, the quarter for the bishop and the quarter for the clergy, thus indicating the purpose of these shares. These purposes still appear today in an adapted form within a general view of the Church's own purpose.^[1] Moreover, the text of Canon 1254 § 2 of the Codex Iuris Canonici of 1983 (CIC/83) reminds us of the trilogy of the purposes of ecclesiastical goods: The poor – the cult – the proclamation, which originated in the Church from the Protestant spirit: Whatever the apostles received was for the poor and for the practicing their apostolic mission.^[2] The purposes stipulated today in Can. 1254 § 2 CIC/83 – the orderly conduction of the whorship services, guaranteeing the appropriate support of the clergy and other church servants as well as practicing the works of the apostolate and charity, especially towards the poor - have been a tradition^[3] since Gratian's time (the end of the 11th century until before 1160)^[4]. Despite many aberrations in the history of ecclesiastical property law, assisting the needy was and is the genuinely Christian purpose of temporal goods.^[5] In old documents, the poor are the first and most important purpose.^[6] The passage ‘especially towards the poor’ in Can. 1254 § 2 CIC/83, of art. 17 par. 3 of the decree Presbyterorum Ordinis of 7 December 1965 (PO) still draws attention to this today. In it, the Fathers of the Second Vatican Council (1962 - 1965) wanted to point out the original purpose of ecclesiastical property, which, over the centuries, threatened to be lost in a multitude of individual canonical provisions.^[7]

3 The Demand of the Second Vatican Council: Strict Appropriation of Ecclesiastical Property

3 The Second Vatican Council insisted that the funds needed by the Church must be used to fulfil its mission (Art. 8, para. 2 of the Dogmatic Constitution Lumen Gentium of 21 November 1964 [LG]). For the church may possess temporal goods only for the fulfilment of its own purposes (Art. 76 para. 5 of the Pastoral Constitution Gaudium et Spes of 7 December 1965 [GS]).^[8] Art. 76 GS demands the appropriation of ecclesiastical property, which the legislature specified in Can. 1254 § 1 CIC/83 in 1983.^[9] This § 1 ties the Church's legal capacity ‘to the realization of its own purposes’.^[10] The aforementioned Can. 1254 § 2 CIC/83 follows this appropriation and defines it more precisely^[11] – in accordance with Art. 17, para. 3 PO.

4 One has to keep in mind that Art. 17, para. 3 PO, which ordained all ecclesiastical goods - and not only the ecclesiastical tithes as Can. 1496 of the Codex Iuris Canonici of 1917 (CIC/17) had decreed – to the aforementioned threefold purpose,which was the decisive directive.^[12] According to this, all ecclesiastical goods must always be used for the purposes that allow the Church to possess temporal goods, namely: The organization of worship services, the worthy support of the clergy and the promotion of works of mercy and charity, in particular for the benefit of the poor (Article 17, para. 3 PO).^[13] Thus, Presbyterorum Ordinis names the three essential purposes of the Church's property – worship services, the support of priests and other (clerical) church servants as well as works of apostolate and charity – which are also adopted into the CIC/83 in the legislative process.^[14] It follows the instructions of Art. 17, para. 3 PO.^[15] Its statement forms the concrete background for Can. 1254 § 2 CIC/83.^[16] For Art. 17, para. 3 PO already lists the purposes mentioned in § 2 - with the exception of guaranteeing the support of non-clerical church servants.^[17] In this legal provision, the support of other church employees was naturally also included in the clarification of the financial purposes.^[18] The second part of the appropriation was - for no apparent reason - reflected in a shortened version by the Second Vatican Council and is limited to the salaries of the clerics.^[19] The third part of the appropriation formula, which was very broadly defined in Can. 1496 CIC/17, is more appropriately formulated in Art. 17, para. 3 PO.^[20] The addition ‘especially towards the poor’ (Art. 17 para. 3 PO) has given a positive accentuation to an original purpose, which had been lost in the last formulations of the legal norms.^[21] Thus, following an ancient spiritual tradition, the CIC/83 resumes the statement ordaining all ecclesial property to the service for the poor^[22].^[23]

5 The statement in Art. 17, para. 3 PO is remarkable in that it claims that the Church may have temporal goods solely for the fulfilment of the purposes mentioned.^[24] Can. 1254 § 2 CIC/83 mentions - in content-related conformity with Art 7 PO - in a demonstrative, non-exhaustive list the Church's own purposes, which all temporal goods of the Church are destined to serve.^[25] Can. 1254 § 2 CIC/83, which defines^[26] the purposes of the Church's temporal goods, replaces the declarative-explanatory ‘namely’ in Art. 17 para. 3 PO with the exemplary-listing ‘special’, which weakens^[27] the strict exclusivity.

6 However, it must be taken into account that the Second Vatican Council emphatically reminds us of the principles of Can. 1254 § 2 CIC/83 in Art. 17 PO and Art. 76 and Art. 88 GS. It is clear from these declarations that ownership of goods intended for purposes other than the Church's own mission, or even for purposes that are unnecessary or unhelpful, is neither lawful nor in any way justified.^[28] The appropriation of the Church's property stems from the texts of the Second Vatican Council. In doing so, the Council focuses on two essential aspects. The first aspect is the Church's pursuit of poverty of secular means and, ultimately, a justification for the strict attachment of the Church's property to the purposes mentioned by law or the Council, respectively. Money or temporal goods, respectively, should not become the Church's end in itself. The second aspect concerns the scope of the financial purposes. If CIC/17 only names worship services and the support of priests and church servants as explicit purposes, the Council will, when confirming the property purposes mentioned in CIC/17, require an explicit expenditure of the temporal church goods for the works of the apostolate and charity.^[29] The actual determination of material goods for the pursuit of institutional purposes justifies the legitimacy of the Church's possession of these goods (cf. Art. 17 PO).^[30]

7 However, the purposes mentioned in Can. 1254 § 2 CIC/83 are obviously not identical with the Church's goal, which is building the Kingdom of God and the salvation of mankind. All (partial) purposes are designated to this one goal. Unlike the Church's goal, the purposes provide information about the means to be used. From the Church's goal, which belongs to the religious, supernatural order (cf. Art. 42 GS), the purposes receive their ecclesiastical significance.^[31] Priests, for whom the Lord is ‘possession and inheritance’ (Nm 18,20), may lawfully use temporal property only for purposes consistent with Christ's teachings and the order of the Church (Art. 17, para. 2 PO).^[32]

[...]

^[1] Hans Heimerl/Helmuth Pree with the assistance of Bruno Primetshofer, Handbuch des Vermögensrechts der katholischen Kirche unter besonderer Berücksichtigung der Rechtsverhältnisse in Bayern und Österreich, Regensburg 1993, marginal no. 1/21.

^[2] José M. Piñero: cc. 1254-1289, in: António Benlloch Poveda (ed.), Código de Derecho Canónico. Edición bilingüe, fuentes y comentarios de todos los cánones, 16th edition, Valencia 2016, p. 559-570, 559-560.

^[3] Cf. Robert T. Kennedy, Book V. The Temporal Goods of the Church [cc. 1254-13010], in: John P. Beal/James A. Coriden/Thomas J. Green (ed.), New Commentary on the Code of Canon Law. An Entirely New and Comprehensive Commentary by Canonists from North America and Europe, with a Revised English Translation of the Code. Commissioned by The Canon Law Society of America, New York/Mahwah 2000, p. 1449-1525, 1455.

^[4] Cf. Decretum Gratiani, C. 12 q. 1 c. 23.

^[5] Winfried Schulz, in: Klaus Lüdicke (ed.), Münsterischer Kommentar zum Codex Iuris Canonici (loose-leaf binder, Status: April 2018), Essen since 1984, Can. 1254 marginal no. 5.

^[6] Piñero, loc.cit., 560.

^[7] Schulz, loc.cit., Can. 1254 marginal no. 5.

^[8] Gerhard Fahrnberger: Das Zweite Vatikanische Konzil und die Revision des kirchlichen Vermögensrechts, in: Hans Paarhammer (ed.), Vermögensverwaltung in der Kirche. Administrator bonorum Oeconomus tamquam paterfamilias, 2nd edition, Thaur 1988, p. 137-161, 141.

^[9] Dieter Maximilian Haschke: Über die Zwecke der Zeitlichen Güter der Katholischen Kirche. Eine Studie zur theologischen Grundlegung des kirchlichen Vermögensrechts, diploma thesis Vienna 2013 (unter: <http://othes.univie.ac.at/30400/> [visited on 28 April 2018]), p. 44.

^[10] Heimerl/Pree, loc.cit., marginal no. 1/23.

^[11] Haschke, loc.cit., p. 44.

^[12] Fahrnberger, loc.cit., 142.

^[13] Luigi Chiappetta: I beni temporali della Chiesa, in: derselbe, Il Codice di Diritto Canonico. Commento giuridico-pastorale, ed. by Francesco Catozella/Arianna Catta/Claudia Izzi/Luigi Sabbarese, vol. 2: Libri III-IV-V-VI, 3rd edition, Bologna 2011, p. 529-615, 532 footnote 2.

^[14] Haschke, loc.cit., p. 46; cf. Fahrnberger, loc.cit., 141-142.

^[15] Fahrnberger, loc.cit., 142 and 160 note 14.

^[16] Schulz, loc.cit., Can. 1254 marginal no. 6.

^[17] Heimerl/Pree, loc.cit., marginal no. 1/22.

^[18] Schulz, loc.cit., Can. 1254 marginal no. 6.

^[19] Heribert Schmitz: Das kirchliche Vermögensrecht als Aufgabe der Gesamtkirche und der Teilkirchen, in: Archiv für katholisches Kirchenrecht 1977 (146), p. 3-35, 5.

^[20] Schmitz, loc.cit., 4.

^[21] Schmitz, loc.cit., 4-5.

^[22] Canon 25 of the Council of Antioch of 341, and Decretum Gratiani, c. 12 q. 1 c. 23.

^[23] Fahrnberger, loc.cit., 142 and 160 note 14.

^[24] Schmitz, loc.cit., 5.

^[25] Helmuth Pree, Grundfragen kirchlichen Vermögensrechts, in: Stephan Haering/Wilhelm Rees/Heribert Schmitz (ed.), Handbuch des katholischen Kirchenrechts, 3rd edition, Regensburg 2015, p. 1471-1504, 1484.

^[26] Haschke, loc.cit., p. 20.

^[27] Haschke, loc.cit., p. 20.

^[28] Chiappetta, loc.cit., 532 footnote 2.

^[29] Haschke, loc.cit., p. 47.

^[30] Alberto Perlasca: Liber V. De bonis Ecclesiae temporalibus. Libro V. I Beni temporali della Chiesa, in: Redazione di Quaderni di diritto ecclesiale (ed.), Codice di Diritto Canonico Commentato. Testo ufficiale latino. Traduzione italiana. Fonti. Interpretazioni autentiche. Legislazione complementare della Conferenza episcopale italiana. Commento. Testo originale dei canoni modificati. Indice analitico, 4th edition, Milan 2017, p. 1007-1060, 1012.

^[31] Pree, loc.cit., 1485.

^[32] Chiappetta, loc.cit., 532 footnote 2.