Original scientific paper
Contract and abalienation separately (can:1290-1298)
Jure Brkan
Abstract
In this work the author has treated Title III. Book V. of the
Code from 1983. can. 1290-1298 “Contracts and A alienation
Separately”; the work is founded on the sources and literature;
in the treatment the author has applied legal-exegetic method,
and he has also applied can. 17 of the Code from 1983. on
understanding the church laws. Church legislator accepts the
secular laws if they are in accordance with the divine law or
unless something else is determined by the canon law; thus, at
judicial proceedings and in contracts, argumentation by means
of witnesses, under the lead of the judge (can.1547), is allowed.
At the abalienation of temporal church goods or temporal goods
of public church corporations, particularities from can. 1291-
1296 should be observed. Regular administrators of church
corporations can, in the name of the corporation, alienate only
those church goods for which permission of the competent
church authority is not specified (working capital). When
dealing with the basic property of a corporation, church laws
require some legal formalities that differ from civil laws. In such
cases, especially when legal formalities are required, written
permission is needed by which the competent church authority
permits the alienation of church goods, and it is condition for
valid alienation, sale or lease. The aim of church laws is not
to harm the property of the corporation. Because of the illegal
procedure at alienation, sale or lease of temporal goods, the
competent church authority is obliged to punish the offender
by just punishment. If the contract on alienation, sale or lease
of the church temporal goods was concluded by an incompetent
person or if the subject of contract was forbidden or if the parties
would not agree, or if there would be no reason for alienation,
sale or lease, then such a contract would be invalid because
some of the constitutive elements of the contract required by
the canon law would be missing. In the cases when the validity
of contract is accepted by the secular authorities but not by
the church laws, the competent church authority should wisely
decide, with help of experts, what to do without endangering the
property of the church corporation. Anyway, church temporal
goods have to be legally protected, and if the administrator of
church temporal goods concluded illegal and invalid contract
on alienation, sale or lease of church property, the church
authority would be obliged to punish the offender by indefinite
punishment.
Keywords
church law; civil law; contracts; written permission; competent authority; alienation; sale; lease
Hrčak ID:
93025
URI
Publication date:
15.6.2004.
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