Comps Questions (Hastings Notes) Flashcards
This is a summative review of the year.
- What other sources of law exist beyond the 1983 Code of Canon Law (cc. 1-2)?
[1] CCEO – 21 Other Sui Generis Churches
De Bertolis: Recall that the Emperor Theodosius divided the empire in 395. The CCEO was promulgated in 1990.
[2] Liturgical Law
De Bertolis: This does not mean that liturgical law is separate from the CIC in such a way that they form two species of law. Liturgical law is true law.
- What things are not abrogated by the 1983 Code of Canon Law (cc. 3-5)?
[3] Conventions with other nations or political societies
Pacta sunt servanda
[361] What is the ApSee: “Nomine Sedis Apostolicae vel Sanctae Sedis in hoc Codice veniunt non solum Romanus Pontifex, sed etiam, nisi ex rei natura vel sermonis contextu aliud appareat, Secretaria Status, Consilium pro publicis Ecclesiae negotiis, aliaque Romanae Curiae Instituta.” [377.5] Future civil authorities lose their rights in regard to bishops: “Nulla in posterum iura et privilegia electionis, nominationis praesentationis vel designationis Episcoporum civilibus auctoritatibus conceduntur.” This is stated very similarly in Christus Iesus, 20. (VatII, AD 1965)
[4] Acquired rights and privileges granted to physical or juridic persons by the ApSee before CIC83 that are in use and are not expressly revoked by the canons of the CIC/83.
There are no such examples of acquired rights being expressly revoked, BTW.
Examples of revoked privileges:
[396.2] “A bishop is permitted to choose the clerics he prefers as companions and assistants on a visitation; any contrary privilege or custom is reprobated.”
[509.1] “After having heard the chapter, it is for the diocesan bishop, but not a diocesan administrator, to confer each and every canonry, both in a cathedral church and in a collegial church; every contrary privilege is revoked.”
[526.2] “In the same parish there is to be only one pastor or moderator in accord with the norm of can. 517, §1; any contrary custom is reprobated and any contrary privilege whatsoever is revoked.”
[1019.2] “The law for secular clerics governs the ordination of all other candidates of any institute or society; any other indult granted to superiors is revoked.”
De Bertolis: Acquired rights are not the “innate” rights that come from Baptism, per c. 96, nor those that come from the law, e.g., Mass offerings at 945.1. They also do not refer to rights from juridic capacity, e.g., c. 642,, nor the expectation of law, e.g., c. 197 (the acquisition of property by prescription).
[5.1] Centenary or immemorial customs whose removal would harm the community
Those which the code expressly permits to continue
[1279.1] “The administration of ecclesiastical goods pertains to the one who immediately governs the person to which the goods belong unless particular law, statutes, or legitimate custom determine otherwise and without prejudice to the right of the ordinary to intervene in case of negligence by an administrator.”
[1263] “After the diocesan bishop has heard the finance council and the presbyteral council, he has governance; this tax is to be proportionate to their income. He is permitted only to impose an extraordinary and moderate exaction upon other physical and juridic persons in case of grave necessity and under the same conditions, without prejudice to particular laws and customs which attribute greater rights to him.”
[5.2] Presently existing customs (univ or part) that are apart from the law
Canons that are abrogated:
[396.2] “A bishop is permitted to choose the clerics he prefers as companions and assistants on a visitation; any contrary privilege or custom is reprobated.”
[423.1] “One diocesan administrator is to be designated; any contrary custom is reprobated. Otherwise, the election is invalid.”
De Bertolis: Recall that customs are fonts of law. There is no distinction here between universal and particular customs.
- What things are abrogated by the 1983 Code of Canon Law (c. 6)?
[6.1] CIC/17
Universal and particular laws contrary to CIC/83
All penal laws not in the CIC/83
All disciplinary laws that the CIC/83 reorders ex integro
De Bertolis: Canons 1-6 are transitional canons, seeking to stabilize the CIC/83 with its antecedents.
- The word “law” is not defined explicitly in the code. What is a law?
- The word “law” is not defined explicitly in the code. What is a law?
A law is a binding norm duly promulgated by a competent legislator for the common good of a community capable of receiving a law.
St. Thomas (ST I-II, 90.4): an ordinance of reason for the common good, made by him who has care of the community, and promulgated. (rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.)
Thomas: rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgat (ST, I-II; 90;4, respondeo)
• Natural Law?
Natural Law: As distinct from revealed law, it is “nothing else than the rational creature’s participation in the eternal law” (Summa Theologica, 1a, 2ae, quest. 91, art. 2). As coming from God, the natural law is what God has produced in the world of creation; as coming to human beings, it is what they know (or can know) of what God has created.
It is therefore called natural law because everyone is subject to it from birth (natio), because it contains only those duties which are derivable from human nature itself, and because, absolutely speaking, its essentials can be grasped by the unaided light of human reason.
- What is meant by divine law? natural law? positive law? merely ecclesiastical law?
Divine Law: from God
Natural Law: known by reason alone
Positive Law: law which enjoins, either divine or man made
Eccl Law: positive law that is neither natural nor divine law
5.2 Who are the passive subjects of law?
[7] A community capable of receiving law
- How is a law promulgated (c. 8)?
• For universal laws, vacatio = 3 months (from the date of issue in the AAS)
• For particular laws, vacatio = 1 month (from the date of promulgation)
• There are generally several stages of a law’s coming into being:
1. Preparation of the text of the law
2. Approval of the text by the legislator and its issuance on his authority
3. Promulgation
4. Vacatio legis
5. The date that the law begins to bind
• Usually universal laws are promulgated in the AAS (but pope can choose other means, e.g., L’Osservatore Romano)
• Particular laws are promulgated by whatever method the legislator chooses (e.g., local bishop could use diocesan newsletter, could send it to all parishes and juridic persons, etc.)
De Bertolis: The active subject of universal ecclesiastical laws can be the Roman Pontiff or Ecumenical Council. The active subject of particular laws can be pontifical Legates, Roman Congregations within their given limits, plenary and provincial Councils, Diocesan bishops individually or as a Synod, Capitular generals, etc.
- When does a law take effect (c. 8)?
Statements of the Divine Law, authentic interpretations of laws that are merely declarative, laws requiring an immediate binding force in order that their purpose may be fulfilled, laws that are merely qualifications of or technical points about other laws, laws that are beneficial to the spiritual well-being of the faithful but do not affect the rights of third parties or require any organizational preparation or changes, and laws that revoke an earlier law that has become unnecessary or unjust as a result of a particular situation go into effect immediately.
[9] De Bertolis: Retroactivity: “In other words, a new law, which changed the previous law in regard to the validity or otherwise of an act, in line principle does not affect the validity or otherwise of the measures put in place during the reign of previous law: this is the principle of the non-retroactivity of positive ecclesiastical law.” An exception to this, c. 1313.2 says, “If a later law abolishes a law or at least the penalty, the penalty immediately ceases.”
[10] De Bertolis: Invalidating and Disqualifying Laws: These are laws that deprive a juridic act of its effects, or deprive a person of doing them validly. Their effect is the inefficacy of the act and the act’s invalidity. Invalidating laws regard the act itself. Disqualifying laws regard the actor.
Invalidating: [1108.1] “Only those marriages are valid which are contracted before the local ordinary, pastor, or a priest or deacon delegated by either of them, who assist, and before two witnesses according to the rules expressed in the following canons and without prejudice to the exceptions mentioned in cann. 144, 1112, §1, 1116, and 1127, §§1-2.”
Disqualifying: [1083.1] “A man before he has completed his sixteenth year of age and a woman before she has completed her fourteenth year of age cannot enter into a valid marriage.”
- Who is bound by a law (cc. 11-12)?
[11] Ecclesiastical law: baptized Catholics, sufficient reason and seven years old
De Bertolis: From Gratian, this canon refers only to merely ecclesiastical laws, not to Divine Law or Natural Law.
[LG44.1] “Per baptismum quidem mortuus est peccato, et Deo sacratus”
[204.1] “Christifideles sunt qui, utpote per baptismum Christo incorporati, in populum Dei sunt constituti, atque hac ratione muneris Christi sacerdotalis, prophetici et regalis suo modo participes facti, secundum propriam cuiusque condicionem, ad mission emexercendam vocantur, quam Deus Ecclesiae in mundo adimplendam concredidit.”
[205] “Plene in communione Ecclesiae catholicae his in terris sunt illi baptizati, qui in eius compage visibili cum Christo iunguntur, vinculis nempe professionis fidei, sacramentorum et ecclesiastici regiminis.”
[96] “Baptismo homo Ecclesiae Christi incorporatur et in eadem constituitur persona, cum officiis et iuribus quae christianis, attenta quidem eorum condicione, sunt propria, quatenus in ecclesiastica sunt communione et nisi obstet lata legitima sanctio.”
[12] Universal laws bind everywhere those who are bound by them except in those territories that are exempt from them
Territorial laws bind those with a domicile or q-domicile while in that territory
- What is the significance of identifying a particular law as territorial versus personal (c. 13)?
[13] This effects the scope of the application of the law. Personal laws bind those for whom they were made wherever they go. Territorial laws bind those with a domicile or q-domicile within that territory.
- What is an authentic interpretation and who can authentically interpret the law (c. 16)?
[16] The law is officially interpreted by the legislator and by the ones to whom he entrusts interpretation (PCILT). The law is also interpreted by judges in concrete circumstances, but not as precedent. (Cf., Pastor Bonus, art. 154-158.)
• Four kinds of authentic interpretation:
1. Declarative interpretation merely affirms the meaning of the wording of the law that was already certain
a. does nothing other than affirm the meaning of the law that is clear in itself
b. has retroactive force, since no change is made to the law whose meaning was not objectively doubtful
2. Restrictive interpretation narrows the meaning and applicability of the law
a. applicability of the law is narrowed, effectively altering the meaning
b. not retroactive WRT to the part of the law whose meaning was explained or changed
3. Extensive interpretation broadens the meaning and applicability of the law beyond what is included in the text of the law
a. applicability of the law is broadened, effectively altering the meaning
b. not retroactive WRT to the part of the law whose meaning was explained or changed
4. Explanatory interpretation explains the meaning of a doubtful law, without extending or restricting its original meaning
a. is the only one that actually resolves a doubt inherent in the wording of the law (cf. c. 14). The other three respond to the question, “Does this law really mean what it says?”
i. declarative interpretation says, “yes”
ii. restrictive interpretation says, “no, the law does not included this situation”
iii. extensive interpretation says, “yes, the law must be seen as including this situation”
b. not retroactive WRT to the part of the law whose meaning was explained or changed
• to have the force of law, authentic interpretation must be put forward in the form of law and promulgated in the usual way (if not in the form of law, they don’t bind juridically)
• interpretation of a law based on divine law is always retroactive
- How are ecclesiastical laws to be interpreted (c. 17)?
• canonical tradition holds in high regard the private interpretation of canon law by scholars
• the “proper meaning” is the way the word or phrase is understood in the canonical tradition
• sometimes the meaning is technical and is only familiar to canonists (e.g., lex and ius)
• Latin text is official text
• may have to find the word in other places in the law to determine context
o look first in the same book or section of the law
o look for parallel places
o consider purpose of the law
o consider the mind of the legislator (mens legislatoris = not an individual, but a construct, an ‘institutional figure’ signifying the whole institution of the law itself, the canonical system, the basic rules, values and principles that support it)
o look at the Eastern code
o other doctrinal sources
- What laws are subject to strict interpretation (c. 18)?
[18] Laws that establish a penalty or restrict the free exercise or rights or which contain an exception to the law
- What is a lacuna legis and how is it resolved (c. 19)?
[19] A lacuna legis is a hole in the law that occurs when an express provision or universal or particular law or a custom is lacking to provide a solution for a concrete case.
The law gives four sources that interpreters should use to seek a rule, norm, or principles to resolve the case
- laws issued in similar matters
- general principles of law applied with canonical equity
a. equity is a principle by which judges and superiors apply the law with mercy. They apply the law faithful to its meaning, but taking account of the concrete circumstances of the person’s life, bearing in mind the overall purpose of the law — the salus animarum - the jurisprudence and practice of the Roman Curia
- the common and constant opinion of learned persons
- How are differences between earlier and later laws resolved? How are differences between universal and particular law resolved (c. 20)?
• Express revocation occurs when later law expressly states that it revokes earlier law, either explicitly or implicitly
o explicitly when it unequivocally states it
o implicitly when by using a general expression or formula it states that previous laws are being abrogated or derogated from, e.g., “notwithstanding anything to the contrary”, “anything presently in force contrary to theis law is abrogated”, or, “derogating from other laws in force”, etc.
• tacit revocation makes no mention of the fact that earlier law is being revoked
o occurs when a later law is directly contrary to an earlier law, and when a later law completely reorders the matter of the earlier law
contrary ex: 1975 GIRM said that Alleluia before the Gospel may be omitted if not sung, but 1981 Lectionary says the Alleluia must be sung (must be omitted if not sung, and is not to be recited)
o complete reordering the entire subject of previous law
affects the entire document, or
may affect all or some of the norms
• e.g.: Cc. 960-963 on general abosultion reordered the 1973 Rite of Penance nn. 31-34
may affect only one or several norms in an earlier juridical text, leaving others intact
• universal law does not revoke particular or special law unless it expressly says so
• revocation of particular law by universal law cannot happen tacitly
• nor can particular law norm be completely reordered by a universal law
• when in doubt, the particular law remains in force (cf. c. 21)
- Who introduces a custom (c. 23)?
[23] Customs are introduced by the community
- What is the status of a custom that has been approved by the respective legislator (c. 23)?
[23] The canon has the force of law (vim legis)
- What is the status of a custom that has been expressly reprobated by the respective legislator (c. 24)?
[24] It does not have the vim legis and is not reasonable.
- What is the difference between a custom praeter legem and a custom contra legem?
Praeter legem is outside of the law and so legal (i.e., not regulated by the law)
Contra legem is contrary to the law and is, by definition, illegal
- Even if contrary to the law, what is the significance of the observance of a custom for 30 years or 100 years (c. 26)?
[26] Those canons obtain the force of law.
Gidi: Power of ecclesiastical governance:
Legistlative: Laws
Judicial: Sentences or Decrees
Executive: Norms (General Character) or Administrative Acts (Singular Character)
Administrative Power: This is part of the power of governance, that promotes the public good, gives determinied limits to the law, promotes the execution of law, interprets and completes laws by decrees and dispositions.
- What is a general decree? Who has the authority to issue it (cc. 29-30)?
[29] General decrees are laws (so Title I applies).
Only a person who possesses legislative power can issue a general decress.
- What is a general executory decree? Who has the authority to issue it (c. 31)?
[30] A general executory decree is an application of the law. It specifies law or urges its observance; it does not create new law.
- Are general decrees and general executory decrees considered to be laws properly speaking?
[30-31] General decrees are laws and general executory decrees are not.
- What is an instruction? How is a conflict between an instruction and a law resolved? How
J.T.M. de Agar, “Handbook on Canon Law,” p. 34,35:
“They cannot change or contradict [law], and to the extent that they do they are invalid… Instructions are rules similar to executory decrees; their typical objective is the same: explaining the provisions of laws and developing and determining the ways in which the law must be implemented, but directed to those whose duty is to execute the law, or to see that it is executed (generally to those who hold office); that is why instructions do not need promulgation.”
Gidi [33]: Revocation is direct (implicit or explicit) or indirect.
[34] Instructions are not laws and laws cannot be enacted under the title “instruction.”
Like general executory decrees, instructions are acts of executive power and are dependent on a prior law.
Instructions further specify how laws are to be applied in practice and they bind subordinate administrators who are responsible to execute or apply the law.
- What types of singular administrative acts are mentioned in the code (cc. 35ff)?
[35] There are decrees, precepts, and rescripts. Decrees resolve controversies or make provisions. Precepts impose injunctions. Rescripts answer requests for favors.
Gidi: These are unilateral, singular and extrajudicial juridic acts of executive authority.
- What is a singular administrative act? How does it differ from a general administrative act?
[35] An administrative act is a juridic action. It is an act performed by an administrator as a function of office and intended to have a juridic effect.
Singular administrative acts: “Decisions or resolutions taken by the authority with regard to particular cases.” (Cf., J.T.M. de Agar, “Handbook on Canon Law”, p. 38)
General: Executory decrees and instructions that are inferior to law given to enforce and specify the provisions of law.
Gidi: Interpretation: Strict is with the minimum necessary extension. Wide is with the maximum extension according to the proper significance of the words
- What must a vicar general do to issue a valid singular administrative act that is contrary to a particular law in his diocese (c. 38)?
[38] The act must have an expressly added derogating clause.
- What is the significance of the particles “if,” “unless,” or “provided that,” is a singular administrative act (c. 39)?
[39] These effect conditions. For the validity of the conditions, these particles must be present. In Latin, they are si, nisi and dummodo.
- Is an executor required for an administrative act issued forma gratiosa or forma commissionia? What discretion does an executor have when executing an administrative act (c. 37)?
Gidi: Ways to issue an act:
Forma Gratiosa: This is direct and immediate on the part of the authority.
Forma Commissoria: This is given in a mediated way via an executor.
Executors: Obligations of the Executor: He must act according to the received mandate or according to his given function. (cf., cc. 42 and 40) He must certify the authenticity of the act (c. 40) He must make sure that the execution of the act is not null or impossible due to conditions He must suspend the execution if is inopportune on account of circumstances of place or persons (c. 41) He must proceed according to the norms of the mandate, on the pain of invalidity of execution (c. 42) Cf. also: [43] The executor of an administrative act can, according to his or her prudent judgment, substitute another as executor unless substitution has been forbidden, the executor has been chosen for personal qualifications, or a substitute has been predetermined. In these cases, however, the executor may entrust the preparatory acts to another. [44] The executor’s successor in office can also execute an administrative act unless the executor was chosen for personal qualifications.
- What is a singular decree (c. 48)?
[48] A singular decree is:
- An administrative act that is an action of executive authority which intends some juridic effect
- Issued by a competent authority with legal basis for action
- Issued according to the norm of law
- Communicates a decision or makes a provision
- Does not presuppose a petition or a request for action on the part of another
- What is a precept (c. 49)?
[49] A precept is a decree which directly and legitimately enjoins a specific person or persons to do or omit something.
Gidi: A precept is subordinate to law.
It is a species of decree with a different object.
Its essential elements are: written form, indication of emanating authority, decision or provision, and signature.
- What must be contained in a decree (cc. 50-51)?
[50] A decree must contain essential info, per Gidi’s class.
- How long does a competent authority generally have to issue a decree in response to recourse? What presumption is made if no response is given (c. 57)?
[57] The competent authority is to provide for the matter within three months from the receipt of the petition or recourse unless the law prescribes some other period.
- What is a rescript (c. 59)?
[59] A rescript is an administrative act issued in writing by a competent authority that grants a privilege, dispensation or other favor at someone’s request.
- What is a privilege (c. 76)?
[76] A privilege is a favor given through a particular act to the benefit of certain physical or juridic persons.
- What is a dispensation (c. 85)?
[85] A dispensation is the relaxation of a merely ecclesiastical law in a particular place.
- If a vicar general denies a favor, under what circumstances can the favor be granted by another vicar or by the diocesan bishop (c. 65)?
[65] Another vicar cannot grant the favor. It also cannot be obtained from the bishop without mention of the previous denial.
- If a law is issued contrary to a previously granted privilege, what is the status of that privilege (c. 73)?
[73] The privilege still stands, unless the law itself provides otherwise.
- Who has the power of dispensing? What laws can a competent authority dispense (cc. 86-89)?
[86] Essential laws cannot be dispensed.
[87.1] A diocesan bishop, for spiritual good, can dispense his subjects from universal or particular disciplinary laws.
[87.2] In danger of grave harm or delay, a diocesan bishop can dispense from reserved laws, provided that the ApSee normally dispenses.
[88] Local ordinaries can dispense from diocesan laws and, when he judges so, laws from plenary or provincial councils of bishops, or from the conference of bishops.
[89] Pastors, presbyters and deacons cannot dispense unless that power has been given to them.
- What are statues (c. 94)?
[90] Statutes are ordinances established according to the norm of law in aggregates of persons or things which define their purpose, constitution, government, and methods of operation.
- Who must have statues (c. 117)?
[117] Aggregates of persons or things that intend to obtain juridic personality must have approved statutes.
- What are rules of order (ordines) (c. 95)?
[95] Rules of order are rules or norms which must be observed in meetings. They define those things which pertain to the constitution, direction and ways of proceeding.
- What are the juridic consequences of baptism in canon 96? What effects of baptism are mentioned in canon 204?
[96] The consequences are:
1. Incorporation into the Church of Christ
2. Being constituted a person in the Church with rights and duties proper to Christians
[204] The spiritual effects are:
1. Sharing in the threefold munera
2. Call to exercise missionary function God has entrusted to the Church
- What elements qualify the status of a person in the Church?
- Age: a person less than 18 is a minor and a person less than seven is an infant and not presumed to have the use of reason [97.1&97.2]
- Majority: a person of 18 years has the full exercise of his rights [98.1]
- Minority: a minor remains subject to parents and guardians except in those things which minors are exempted by divine or canon law. [98.2]
- Mental Condition
- Residence
- What are the significant ages found in canon law?
IMPORTANT AGES
<7 Infant
7 Subject to the norms of adult baptism. Age of reason is presumed.
14 Can choose one’s own rite of baptism.
Girls marry validly.
Bound by law of abstinence.
Law of abstinence; baptism referred to
16 Bound by eccl. sanctions.
Sponsor at baptism.
Boys marry validly
17 Novitiate
18 Bound by Fast
Temp. vows (Profession)
Considered an adult
21 Perpetual Profession
23 Transitional Deacon
25 Priest
25 Celibate deacon
30 VG.. EV., JV
35 Permanent deacon
35 Bishop
59 No longer bound to fast
75 Bishop retires
80 Cardinals retire or members of curia- What is meant by non sui compos (cc. 97 and 99)?
[99] Whoever habitually lacks the use of reason is considered not responsible for oneself and is equated with infants.
- What is consanguinity and how is it computed (c. 108)?
[108] Consanguinity is the sharing of blood lines. It is computed through lines and degrees.
- What is affinity (c. 109)?
[109] Affinity is the relationship with in-laws, in any canonically valid marriage (i.e., even natural alone or unconsummated). Affinity is perpetual.
- How does one acquire domicile and a quasi-domicile (c. 102)?
[102.1] Domicile is acquired by residence in a place with the desire to intention there permanently or having resided in a place for five years
[102.2] QDomicile is acquired by residence in a place with the desire to remain there at least three months, or by remaining somewhere three months
- How does one lose domicile (c. 106)?
106] Domicile is lost by departure without intention to return
- At what age can one freely choose to be baptized in the Latin Church, or another ritual Church (c. 111)?
[111.2] 14
- How does canon law view children who are adopted? How does civil law affect this canon (c. 110)?
[110] They are considered to be children of the person who adopted them.
- What is a physical (natural) person, a juridic person, and a moral person?
A moral person is a group or succession of natural persons who are united by a common purpose and have a particular relationship to each other and because of the relationship, can be conceived of as a single entity.
A moral peson can also be understood as an accumulation or mass of material goods or assets set aside for a common purpose.
A juridic person is an artificial person, constituted by competent authority for an apostolic purpose, distinct from all natural persons or material goods, with a capacity for continuous existence and with canonical rights and duties like those of a natural person. It is not a group or a collective. Of its nature, it is perpetual.
A natural person is self-evident.
- Are the Catholic Church and the Apostolic See juridic persons (c. 113)?
[113.1] They are moral persons. They cannot be juridic persons because they are not created by ecclesiastical authority.
- In what two ways is a juridic person constituted (c. 114 §1)?
[114.1] There are two modes.
- By operation of law (a iure)
- By decree of competent authority (ab homine)
- What are the purposes in keeping with the mission of the Church for which a juridic person can be constituted (c. 114 §2)?
[114.2] They are works of piety, of the apostolate, or of charity, whether spiritual or temporal.
- What are universitates personarum and a universitates rerum (c. 114 §3)?
[114.3] Aggregates of persons and aggregates of things
[115.1-3] An aggregate of persons is at least three people, and can be collegial (wherein the members determine its action via participating in decision-making) or non-collegial
An aggregate of things, or an autonomous foundation, consist of goods or things, spiritual or material, and at least one juridic person or a college directs it according to law and statute.
- What is a collegial and a non-collegial juridic person (c. 115 §2)?
[115.2] Collegial juridic persons are those juridic persons where members participate in rendering decisions, by equal right or not, according to law and statute. Anything else is not collegial.
- What document must all juridic persons have and which must be approved by competent ecclesiastical authority (c. 117)?
[117] Statutes
- What are public juridic persons (c. 116)?
[116] NCCCL: “The distinction between a public and a private juridic person is essentially the distinction between a juridic person that is closely governed by ecclesiastical authority (public) and one that, although subject to authority in certain respects, enjoys more autonomy and is governed primarily by its own statutes (private). The distinction is essentially a difference in relationship to the hierarchy.”
This hinges on acting “in the name of the Church.”
- What happens to the patrimony of public juridic persons that are joined? What happens to the patrimony of a juridic person that is divided (cc. 121-122)?
[121] Joined: The new juridic person gains the patrimony of the previous two, and the intention of donors is respected. This is referring only to the joining into a consolidation (two institutions end, and a new one is created), and not when one person is suppressed and absorbed or when a confederation of persons is made.
[122] Divided: The competent authority must respect intention of founders and donors and must personally or through an executor
[122.1] debts, rights, goods, etc., are divided justly and equitably between resulting juridic persons
[122.2 ] use and usufruct of indivisible goods (along with accompanying obligations) are justly and equitably shared
- In what ways can public and private juridic persons be constituted (c. 116 §2)?
Public: by the law itself or by a special decree of competent authority
Private: decree alone
- In whose name does a public and private juridic person function (c. 116 §1)?
Public: in the name of the Church
Private: in its own name
- Who governs a public and a private juridic person (c. 118)?
Public: Those whose competence is acknowledged by universal or particular law or statute.
Private: Statute alone
