the apostolate: is a new public juridic person next?

12 Pages·2003·0.05 MB·English

the apostolate:
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Many religious institutions (Institute) are and privileges very similar to those of natural
beginning to consider the Institute’s continuing persons. Sometimes, these juridic entities are
ability to fulfill its canonical responsibility for a referred to as artificial persons. In American law,
specific expression of the proper works (the such an entity is called a corporation. Though not
Apostolate) of the Institute. In the context of these exactly the same as the corporation in American
considerations, questions arise concerning a new law, the juridic person is the canonical term used
public juridic person as the canonical successor to for a canonical entity that has characteristics and
assume responsibility for a specific institutional- functions that are in many ways similar to the
ized expression of the proper works of the Insti- American corporation. In canon law, there are
tute such as health, education and social services. two kinds of juridic persons, private and public.
Many of these works are now carried on in The public juridic person has a special status and
American corporations1 originally incorporated privilege to participate formally in the public
by the major superiors of the Institute through apostolate of the Church. The Institute is a type of
actions taken in accord with the Institute’s consti- public juridic person. Therefore, the focus of this
tutions and American law. essay is on the public juridic person as a canonical
The goal of this essay is to suggest the consid- successor to the Institute for its Apostolate be-
eration of the public juridic person as the canoni- cause of the similarity between the status and
cal successor to the Institute for its Apostolate. In function of the Institute and other public juridic
the Church legal system, as in most legal systems, persons in the exercise of the apostolate of the
a legal entity can be created which can carry on Church which is entrusted to them.
Melanie DiPietro is a Seton Hill Sister of Charity and is both a civil and canon lawyer. She con-
centrates on religiously affiliated corporations. Her practice area includes tax-exempt health, social
service and education corporations and has served as Associate Counsel to the Diocese of Pittsburgh.
She has served as a consultant to religious congregations on matters concerning management, gover-
nance and legal issues for religiously affiliated corporations.
1 Apostolate as used in this essay refers to one expression ture and its funding structure will control the options
of a proper work. It is assumed that the expression is a available to the Institute. This essay only discusses
sizable institution such as a school, hospital or social general principles of canon law. The term proper work is a
service agency. It is also assumed that the activities of the technical term in the code. It means the work of the
work occur in a corporation with substantial assets. It may founder and those general works approved in the consti-
be that an elementary school or a high school is not tutions. An institution or a corporation is an expression of
separately incorporated from the corporation that carries the proper works. The word Apostolate as used in this
on the business activities of the religious institute. In this essay refers to one institution or corporation, one specific
short article it is not possible to address all variations of expression of the proper works.
the facts. The precise nature of the work, its legal struc-
Number 75 The Legal Bulletin Page 3
The catalysts for the Institute’s interest in a The following discussion addresses the first
canonical successor for an Apostolate may be the question. It assumes that the Institute is now
demographics of the Institute which results in considering terminating its relationship to an
fewer religious working in the institution or the institution with substantial assets that may be a
corporation. The governance responsibilities for separate corporation controlled by the Institute.
these corporations often fall upon the major Since the activities of the proper works are carried
superiors and councils because they become on in a corporation, the Institute, if it terminates its
Members or trustees in the corporations as a result control of the corporation, is making a decision
of their office in the Institute. These responsibili- which has irrevocable consequences in terms of
ties are often perceived as a disproportionate the potential loss of legal control of assets dedi-
burden on leadership. If this is the catalyst for the cated to the Apostolate in the corporation. This
question, it is important for leadership to differen- decision affects both the Institute and the local
Church. It is important for the major superiors and
councils who are ultimately responsible for the
decision to reflect on the total ecclesial signifi-
cance of their decision. Therefore, the suggested
approach to the analysis of this decision includes
three parts. First, it is important to reflect on the
theological and canonical significance of proper
works of an Institute. Second, it is important to
reflect upon the interrelationships of the Aposto-
late of the Institute to the hierarchical structure of
(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)
the Church and the ecclesiology of the mission of
tiate two separate canonical questions. Leadership the Church in the modern world, especially in its
needs to identify which of these two questions it institutional presence in the service sector in the
is addressing. The first is the question of the United States. Third, it is important to understand
modification of one expression of the proper how a successor public juridic person assuming
works of the Institute which may mean leaving a canonical responsibility for an Apostolate of the
certain institutional expression of an Apostolate Institute provides continuity in the ecclesial
such as a hospital or a high school. This is a community for the public expression of apostolate
question of the form and means to carry out the of the Church.
Apostolate. The second is the question of the
abandonment of a proper work entirely. This PPPPPAAAAARRRRRTTTTT OOOOONNNNNEEEEE:::::
means that the Institute no longer engages in a TTTTTHHHHHEEEEE PPPPPRRRRROOOOOPPPPPEEEEERRRRR WWWWWOOOOORRRRRKKKKKSSSSS
stable or committed manner, in any kind of works
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“elected by the founders or introduced in the
Though the term ministry is often used,
course of time by way of sound traditions.”2 In
Apostolate is used in this essay to refer to the
juridic terms, the works of the founders are called
proper works of the Institute because these two
“proper works.” Either one of these decisions is a
terms, proper works and apostolate, are used in
serious act of governance authority in the Insti-
tute. Its proper works are formal ecclesial activity.
Either one of these questions are governance
actions that require the approval by the next level 2 Richard Hill, S.J., “The Apostolate of the
Institute:Canons 673-683,” in A Handbook on Canons
of authority as indicated in the Institute’s constitu-
573-746,Jordan Hite, T.O.R., Sharon Holland,I.H.M.and
tions and the 1983 Code of Canon Law (the Daniel Ward,O.S.B.,eds. (Collegeville,
code). Minnesota:Liturgical Press, 1985), 204.
Page 4 The Legal Bulletin Number 75
the 1983 Code of Canon Law.3 The Apostolate
of the Institute has two dimensions which are The apostolate of all
described in canons 673 to 675.4 The apostolate
religious institutes is the
of all religious institutes is the witness of conse-
crated life. This witness is then expressed in one witness of consecrated
way in contemplative institutes and in another
life. This witness is then
way in institutes dedicated to external works of
the apostolate. The “proper works” of the Institute expressed in one way in
are the works that are identified in the Institute’s
contemplative institutes
founding and stated in the constitutions of the
Institute. The juridic significance of “proper and in another way in
work” means that these are the authorized apos-
institutes dedicated to
tolic engagements of the Institute. Canon 675
identifies the apostolate as part of the nature of an external works of the apos-
Institute dedicated to apostolic actions. The
tolate. ...
authority to engage in these works as a right
comes from the approval by the Congregation of (cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)
Institutes of Consecrated Life and Societies of change its proper works. This is the meaning of
Apostolic Life (CICLSAL) of the constitutions of canon 677 which balances necessary renewal
the Institute. Because the proper works are of the with enduring faithfulness to mission and works
nature of the Institute, the human and material proper to the Institute.5 The major superior and
resources of the Institute are dedicated and com- council, as well as the members of the Institute,
mitted in a stable manner to the proper works. need to appreciate the significance and stability of
The form that is used to express the proper works proper works. Proper works cannot be treated in
may change according to the needs of the time. the same manner as apostolic works of individual
However, the changes must be within the limits of sisters or more recent charitable undertakings of
the authorized proper works. For example, the Institute that are not a part of the Institute’s
education is a proper work. One expression, a proper works. The significance here is that the
high school may close or the Institute may con- focus on the Institute’s proper work6 means that it
sider separating it from the Institute’s canonical is a formal and official public part of the aposto-
responsibility. But, the Institute cannot, without late of the Church. Therefore, there is a juridic
approval of CICLSAL, withdraw the Institute’s status of the work itself in the Church.
commitment to education because it cannot
5 83 CIC c.677: § 1. Superiors and members are to
3 Ibid., 197-199. Hill has a succinct summary of the retain faithfully the mission and works proper to the
distinction among these terms and the use in the 1917 institute. Nevertheless, attentive to the necessities of
Code of Canon Law and the present code. times and places, they are to accommodate them pru-
4 83 CIC c.673: The apostolate of all religious consists dently, even employing new and opportune means.
first of all in the witness of their consecrated life, which § 2. Moreover, if they have associations of the Christian
they are bound to foster by prayer and penance. faithful joined to them, institutes are to assist them with
83 CIC c. 675: § 1. Apostolic action belongs to the very special care so that they are imbued with the genuine
nature of institutes dedicated to works of the apostolate. spirit of their family.
Accordingly, the whole life of the members is to be 6 A proper work is also distinguished from the work that
imbued with an apostolic spirit; indeed the whole is “entrusted” to an Institute by the local Church. An
apostolic action is to be informed by a religious spirit. entrusted work is usually within the proper work of an
§ 2. Apostolic action is to proceed always from an Institute. For example, the bishop may entrust a parish
intimate union with God and is to confirm and foster this school to a religious institute whose proper work is
union. § 3 Apostolic action, to be exercised in the name education. In this situation, the religious institute
and by the mandate of the Church, is to be carried out in collaborates with the diocese in theits apostolic work of
the communion of the Church. the diocese.
Number 75 The Legal Bulletin Page 5
A study of canons 577, 578, 675 and 677 is the Apostolate requires an understanding of the
helpful to appreciate the significance of decisions theological and counciliar values underlying the
affecting historical expressions of proper works to juridic scheme described in these canons and the
the life of the Institute. Several themes emerge ecclesiological significance of the Institute’s
from these canons. First, a proper work is part of decisions which affect the Church’s institutional
the patrimony of the Institute because it is part of means to carry out its mission. These works and
its nature and purpose.7 Second, the proper work the means to carry them out are part of the patri-
is not merely a philanthropic work or an act of mony of the Institute. Consequently, the assets
charity in the secular sense. It is work, grounded dedicated to the Apostolate are subject to the code
in grace and sacrament, that is incarnating Christ because they are considered as Church property
praying, announcing the kingdom or doing good and the Apostolate is part of the public apostolate
in the fulfillment of the will of the Father. Apos- of the Church. Institutes and their proper works
tolic action means that it is rooted in the spiritual are in a broad sense part of the patrimony of the
life and animated by union with God. The Church.
Apostolate of the Institute is exercised in the name The reading of these canons as part of the
of the Church by the mandate (here the constitu- preparatory work of the major superior and
tions of the Institute), and it is carried out in councils in addressing the future of their proper
communion of the Church. This last phrase, works requires a study of the documents of the
“communion of the Church” is the rich theologi- Second Vatican Council underlying these canons.
cal basis for the understanding of the place in the These documents cannot be discussed in this brief
visible society of the Church of the Apostolate of introductory essay. However, the canons cannot
the Institute. This Church is a visible society guide the analysis and fidelity to canonical norms
through which Christ communicates truth and is impossible without an understanding, apprecia-
grace. The Church claims charitable works as its tion and implementation of the underlying theol-
own mission and right.8 The exercise of the ogy. The Constitutions on the Church and the
governance authority of the Institute in matters of Church in the Modern World provide the explana-
tion of the ecclesial reality of the Church which is
7 83 CIC c. 577: In the Church there are a great many at once a spiritual and visible society, and an
institutes of consecrated life which have different gifts exposition of its practical role in modern life to
according to the grace which has been given them: they
heal, educate and relieve human need. The
more closely follow Christ who prays, or announces the
kingdom of God, or does good to people, or lives with reading of the Decree on the Renewal of Reli-
people in the world, yet who always does the will of the gious Life with the Decree on the Laity provides
Father.
the theological understanding of the difference
83 CIC c. 578: All must observe faithfully the mind
between the participation of the Institute in the
and designs of the founders regarding the nature, purpose,
spirit, and character of an institute, which have been public apostolate of the Church and the participa-
sanctioned by competent ecclesiastical authority, and its
tion by individual baptized persons and private
sound traditions, all of which constitute the patrimony of
associations of the faithful.9 It further provides an
the same institute.
83 CIC c. 675: § 1. Apostolic action belongs to the
very nature of institutes dedicated to works of the 9 83 CIC c.298: In the Church there are associations
apostolate. Accordingly, the whole life of the members is distinct from institutes of consecrated life and societies of
to be imbued with an apostolic spirit; indeed the whole apostolic life; in these assocaitons the Christian fiathful,
apostolic action is to be informed by a religious spirit. whether clerics, lay persons, or clerics and lay persons, or
§ 2. Apostolic action is to proceed always from an clerics and lay persons together, strive in a common
intimate union with God and is to confirm and foster this endeavor to foster a more perfect life, to promote public
union. § 3 Apostolic action, to be exercised in the name worship or Christian doctrine, or to exercise other works
and by the mandate of the Church, is to be carried out in of the apostolate such as initiatives of evangelization,
the communion of the Church. works of piety or charity, and htose which animate the
8 Lumen gentium 8; Apostolicam actuositatem 8; temporal order with a Christian Spirit.
Gravissimus educationis, 8, Gaudium et spes.8 Private associations act in their own name for purposes
Page 6 The Legal Bulletin Number 75
understanding of each one’s place and function in in the local Church.11 Canon 67812 describes the
the hierarchical structure of the ecclesial society. dual authority of the Institute and of the local
This theology and the principles in the identi- bishop and the expected collaboration of the
fied canons reveal the two characteristics that are Institute and the bishop in the organization of the
intrinsic to proper works: they are essentially works of the Apostolate of the Institute in the
religious, and they are an integrated part of the local Church. The relevance in this reference to
public mission of the Church. Therefore, they are the collaboration assumed between the Institute
in relationship to the hierarchical structure of the and the bishop for the coordination of the works
Church. The interrelationship of the proper works of the apostolate in his diocese is the promotion of
of the Institute to the hierarchical structure of the the common good of the Church. The scope and
Church, particularly to the local church, is an strength of the system of hospitals, colleges,
important value theologically and practically to schools and social service agencies existing in the
the effectiveness of the Church as an actor in United States, many of which were initiated by
society contributing to the common good. religious institutes in response to requests from the
local bishop, is testimony of the value to the
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Church. While the local Church can always invite
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individuals and groups of the faithful to collabo-
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rate in a formal way in the public apostolate of the
The Institute has the autonomy to decide how
Church, the status of a public juridic person
and in what manner it performs its proper works.
provides a greater identifiable potential for stabil-
This includes the autonomy to decide when to
ity and growth of the public apostolate of the
withdraw from a specific expression of one of its
Church established by the works of religious
proper works. When an Institute is invited into a
institutes. The assumption in canon 394 is that the
diocese and establishes a religious house it has the
bishop not only coordinates the various
right to engage in its proper works.10 However,
apostolates controlled by the diocese but that he
the bishop is responsible for the apostolate of the
can rely on the collaboration of existing religious
local Church and for coordinating the apostolate
11 83 CIC c. 394: §1 The Bishop is to foster various
that they decide and for the time of involvement that they forms of the apostolate in his diocese and is to ensure that
determine. throughout the entire diocese, or in its particular districts,
For a succinct comparison between public juridic all works of the apostolate are coordinated under his
persons and private juridic persons see Jordan Hite, direction, with due regard for the character of each. §2 He
T.O.R., A Primer on Public and Private Juridic Persons, is to insist on the duty that binds the faithful to exercise
(St. Louis: Catholic Health Association, 2000). the apostolate according to each one’s condition and
10 83 CIC c. 616: §1. The supreme moderator can ability and is to exhort them to participate in or assist
suppress a legitimately erected religious house according various works of the apostolate according to the needs of
to the norm of the constitutions, after the diocesan bishop place and time.
has been consulted. The proper law of the institute is to 12 83 CIC c. 678: §1. Religious are subject to the
make provision for the goods of the suppressed house, power of bishops whom they are bound to follow with
without prejudice to the intentions of the founders or devoted submission and reverence in those matters which
donors or to legitimately acquired rights. §2. The regard the care of souls, the public exercise of divine
suppression of the only house of an institute belongs to worship, and other works of the apostolate. §2. In
the Holy See, to which the decision regarding the goods exercising an external apostolate, religious are also
in that case is also reserved. §3. To suppress the autono- subject to their proper superiors and must remain faithful
mous house mentioned in can. 613 belongs to the general to the discipline of the institute. The bishops themselves
chapter, unless the constitutions state otherwise. §4. To are not to fail to urge this obligation if the case warrants
suppress an autonomous monastery of nuns belongs to it. §3. In organizing the works of the apostolate of
the Apostolic See, with due regard to the prescripts of the religious, diocesan bishops and religious superiors must
constitutions concerning its goods.) proceed through mutual consultation.
Number 75 The Legal Bulletin Page 7
institutes. The current issue for Institutes is the work. That entity can be a secular entity with
whether a decision to withdraw from its institu- no affiliation to the Church. For example, the
tional expression of the Apostolate affects a loss assets of a hospital may be sold to another non-
to the Church of this network of formal, public profit or for profit corporation. The sale proceeds
participation in the apostolate of the Church or are titled in the selling corporation, e.g. the
whether the system of institutions built by reli- hospital or high school. American law will be
gious institutes can continue to function and grow applied to the future use of these sale proceeds
in the name of the Church. Transfer of the canoni- and it will apply differently to a hospital than a
cal responsibility of the Apostolate and of the high school.
assets dedicated to these works to a successor The Institute has two canonical options if it
public juridic person is an alternative that may wishes to see the work continue with an affiliation
best continue this formal, public relationship of to the Catholic Church. It can transfer the control
the Apostolate to the Church. of the work and the assets to a group of Catholic
laypersons who undertake the work in their own
name. In canon law, groups of laypersons can
The Institute has two
function, juridically, as a private association or a
canonical options if it private juridic person.13 Examples of a private
association or private juridic persons are the
wishes to see the work con-
Ladies of Charity or the St. Vincent DePaul
tinue with an affiliation to Society. This type of canonical successor changes
the Apostolate to a private activity, praised by the
the Catholic Church.
Church but it does not operate in the name of the
(cid:2)(cid:2)(cid:2)(cid:2)(cid:2) Church nor is it integrated into the hierarchical
structure of the Church. Since the activity is
private, it does not have the same presumption of
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The option that is closest to the structured
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relationship in the hierarchical structure of the
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Church and to the public and formal participation
An Institute is not bound to maintain every
in the mission of the Church of the Institute is the
institutional expression of its proper works.
public juridic person. If the Institute wants to
Theoretically, the Institute has several canonical
continue the ecclesiological function and the
options. Following the procedures outlined in its
counciliar values of its proper works as outlined
constitutions, and if a sale of property is involved,
in Parts One and Two, the public juridic person is
following the canonical procedures for alienation,
the most appropriate alternative.
it can close the institution entirely. It sells the
The parallel participation in the public aposto-
assets and dissolves the corporation. The work
late of the Church between the religious institute
ceases. Its access and use of the proceeds from the
and the new public juridic person is evident in the
sale of assets depends on the nature of the institu-
canons that define each one’s apostolate.
tion and the laws which apply to the sale pro-
Canon 675 defines apostolic action as belong-
ceeds. If the Institute wants to provide for the
continuation of the work, it follows the appropri-
13 See note 15 for a definition of juridic persons (c.114)
ate canonical procedures, and takes legal mea-
and public juridic persons (c.116). Private juridic persons
sures to transfer control of the work and the assets
are defined as not public which means that they do not
to another legal entity that will continue to operate operate in the name of the Church and a work is not
entrusted to them by the Church. They choose it.
Page 8 The Legal Bulletin Number 75
The legal issue is how con- juridic person are the works of piety, of the
apostolate, or of charity. 15
trol of assets of a
public benefit charitable TTTTTEEEEECCCCCHHHHHNNNNNIIIIICCCCCAAAAALLLLL AAAAANNNNNDDDDD FFFFFAAAAACCCCCTTTTTUUUUUAAAAALLLLL
IIIIINNNNNFFFFFOOOOORRRRRMMMMMAAAAATTTTTIIIIIOOOOONNNNN RRRRREEEEELLLLLEEEEEVVVVVAAAAANNNNNTTTTT TTTTTOOOOO
corporation such as a
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hospital, college or social
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service agency can be PPPPPEEEEERRRRRSSSSSOOOOONNNNN
transferred. Assuming that the Institute prefers a public
juridic person to succeed to the canonical respon-
(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2) sibility for its Apostolate, the institute needs to
determine how the facts and circumstances
surrounding the Institution or corporation in-
ing to the very nature of institutes dedicated to volved in this Apostolate affect the constitution of
works of the apostolate. In paragraph 3, this a public juridic person and the transfer of owner-
canon, apostolic action is ship or control of the assets presently used for the
… to be exercised in the name and by the Apostolate. The Institute usually petitions
mandate of the Church, is to be carried out in CICLSAL to constitute a successor public juridic
the communion of the Church.14 person. The Institute will need to consult a canon-
Canon 116.1 indicates that public juridic ist for this analysis because of the variation in the
persons facts and the American law that is relevant to the
… within the purposes set out for them, specific legal structure in which the activities of
…fulfill in the name of the Church…the the Apostolate are conducted. There are two
proper function entrusted to them… separate canonical issues and at least one signifi-
Canon 114 indicates that these purposes of a cant legal issue in this initial examination. The
two canonical issues are (1) the factual basis for
the constitution of a new public juridic person and
14 See footnote 4.
15 83 CIC c. 114: § 1. Juridic persons are constituted (2) the alienation process that may be involved in
either by the prescript of law or by special grant of the transfer of ownership or control of assets
competent authority given through a decree. They are
presently used for the Apostolate to the new
aggregates of persons (universitates personarum) or of
things (universitates rerum) ordered for a purpose which public juridic person. The legal issue is how
is in keeping with the mission of the Church and which control of assets of a public benefit charitable
transcends the purpose of the individuals. § 2. The
corporation such as a hospital, college or social
purposes mentioned in § 1 are understood as those which
pertain to works of piety, of the apostolate, or of charity, service agency can be transferred.16 Secondary
whether spiritual or temporal. § 3. The competent and elementary schools are treated differently
authority of the Church is not to confer juridic personal-
ity except on those aggregates of persons (universitates
personarum) or things (universitates rerum) which pursue persons are given this personality either by the law itself
a truly useful purpose and, all things considered, possess or by a special decree of competent authority expressly
the means which are foreseen to be sufficient to achieve granting it. Private juridic persons are given this person-
their designated purpose. ality only through a special decree of competent author-
83 CIC c. 116: § 1. Public juridic persons are aggre- ity expressly granting it.
gates of persons (universitates personarum) or of things 16 There are many ways to transfer control in a corpora-
(universitates rerum) which are constituted by competent tion. Since the major superior and council are often
ecclesiastical authority so that, within the purposes set Members of a corporation, one common way to transfer
out for them, they fulfill in the name of the Church, control is by a membership substitution. The representa-
according to the norm of the prescripts of the law, the tives of the public juridic person replace the major
proper function entrusted to them in view of the public superior and council as Members with reserved powers in
good; other juridic persons are private. § 2. Public juridic the corporation.
Number 75 The Legal Bulletin Page 9
legally than hospitals, colleges or social service new public juridic person is contemplated, the
corporations. Institute’s task is more complicated. A canonist
If a public juridic person is constituted to should guide the Institute in its analysis of this
succeed to the Apostolate of the Institute, it is option.
assumed that the petitioner Institute also transfers The public juridic person is a legal fiction in
control or ownership of the resources and assets canon law just like the corporation is a legal
necessary to carry on the activities of the Aposto- fiction in American law. However, there must be
late to the new public juridic person. Canon 114 some group of persons or some assets that, in fact,
requires that the public juridic person has access constitute its underlying reality. Legally and
to the means (human and financial) to carry on the canonically, the corporation or the public juridic
apostolate. person is a separate entity from the Members or
Canonically, such a transfer may need to be trustees in a corporation or the persons or things
treated as an alienation.17 There may be a ques- that are the underlying reality of public juridic
tion of whether there is any fair market value person. In the code, a public juridic person is an
exchange between the Institute and the new aggregate of persons or things. It, like a corpora-
public juridic person for the transfer of control or tion, is a distinct legal actor.19
ownership of assets dedicated to the Apostolate. One may, for the introductory purposes of this
This question requires both a canonical and essay, compare the public juridic person consti-
American law analysis of the facts. This is be- tuted as an aggregate of things to an American
yond the scope of this brief introductory essay. It foundation. In the code, the aggregate of things
is enough at this point simply to identify that the constituted as a public juridic person is called an
actual transfer of ownership or control of assets autonomous foundation. Basically, in an autono-
currently used for the Apostolate requires separate mous foundation (or a foundation in American
canonical and legal analysis. law) assets generate revenues and the revenues
The elements of a public juridic person are are used to support the charitable purpose.20 This
found in canons 114, 115 and 116. If the Institute fund is managed by persons. The fund is perma-
transfers the Apostolate to an existing public
juridic person, the Institute needs only to address 18 The Institute needs to examine all of the legal
possibilities for compensation both presently and in the
the alienation questions from a canonical, legal
future, especially upon a sale or transfer of control of the
and business perspective.18 If the constitution of a assets in a corporation.
The code requires that the public juridic person has
secure and stable access to sufficient assets to carry on the
Apostolate entrusted to it. The analysis of this codal
17 83 CIC c. 1291. The permission of the authority requirement overlaps with the issue of alienation and
competent according to the norm of law is required for whether any fair market value exchange occurs between
the valid alienation of goods which constitute by the Institute and the new public juridic person. This issue
legitimate designation the stable patrimony of a public is a separate issue from the identity of assets as the
juridic person and whose value exceeds the sum defined aggregate of things that can be constituted as a new
by law. public juridic person. The two issues need to be analyzed
83 CIC c.1290: The general and particular provisions separately.
which the civil law in a territory has established for 19 The public juridic person, like a corporation acts
contracts and their disposition are to be observed with the through authorized persons, but the action is that of the
same effects in canon law insofar as the matters are “artificial person,” which is the legal actor.
subject to the powers of governance of the Church unless 20 83 CIC c.1303: § 1. In law, the term pious founda-
the provisions are contrary to divine law or canon law tions includes: 1° autonomous pious foundations, that
provides otherwise, and without prejudice to the prescript is, aggregates of things (universitates rerum) destined for
of can. 1547. the purposes mentioned in can. 114, § 2 and erected as a
juridic person by competent ecclesiastical authority.
2° non-autonomous pious foundations, that is, temporal
goods given in some way to a public juridic person with
the obligation for a long time, to be determined by
Page 10 The Legal Bulletin Number 75
nent or at least stable, but managers change. In the an American operating corporation. In the United
foundation approach, whether in canon or Ameri- States, most hospitals, schools, colleges and social
can law, it is assumed that the assets generate services are organized as operating corporations,
sufficient revenue to support the purpose of the not foundations. The material and financial
public juridic person. Therefore, if an aggregate resources in an operating corporation, in the
of things, called an autonomous foundation in ordinary course of business, change precisely
canon law, is to be constituted the new public because of the nature of the services and the need
juridic person, it is necessary to (a) define the for flexibility in carrying out the programs and
aggregate of property; (b) determine its suffi- activities of healthcare, education and social
ciency and stability to support the purpose long services.
term; and (c) determine whether the authority of Usually, the American corporation is not a
canonical entity. Canonically, the Institute, whose
underlying reality is an aggregate of persons, is a
The public juridic person is
public juridic person which uses one or more
a legal fiction in canon law American operating corporations to carry on its
Apostolate. Since the Institute may be replaced by
just like the corporation
a new public juridic person, it is necessary to
is a legal fiction determine whether an aggregate of persons or
things is constituted as a new public juridic
in American law.
person. In this second option, American law is not
(cid:2)(cid:2)(cid:2)(cid:2)(cid:2) relevant to the juridical relationship between the
competent canonical authority in constituting the competent authority in the Church and persons
aggregate of things as a public juridic person, is who may constitute the aggregate of persons
protected by the operation of American law. This constituted as a public juridic person. In this
requires an examination of the legal rights in the option, it is only necessary to identify the canoni-
ownership of the property itself not just in the cal criteria of membership in the new public
legal right to control the property. This, again, is a juridic person.
complex canonical and legal issue beyond this Thus, the Institute, with canonical counsel
introductory essay. It is sufficient here to identify will need to examine which option, an aggregate
the issue as part of the initial examination. of persons or an aggregate of things, is available
In contrast to things, an aggregate of people in the specific facts and circumstances of its
can be the underlying reality of the public juridic Apostolate. After these fundamental questions are
person. For example, persons are the underlying addressed, the Institute, as a petitioner and the
reality of an Institute. An aggregate of person
constituted as a public juridic person must have at
21 83 CIC c. 115: § 1. Juridic persons in the Church are
least three persons.21 This structure is similar to either aggregates of persons (universitates personarum)
or aggregates of things (universitates rerum). § 2. An
aggregate of persons (universitates personarum), which
particular law, of celebrating Masses and performing can be constituted only with at least three persons, is
other specified ecclesiastical functions or of otherwise collegial if the members determine its action through
pursuing the purposes mentioned in can. 114, §2, from participation in rendering decisions, whether by equal
the annual revenues. §2. If the goods of a non-autono- right or not, according to the norm of law and the
mous pious foundation have been entrusted to a juridic statutes; otherwise it is non-collegial. § 3. An aggregate
person subject to a diocesan bishop, they must be of things (universitas rerum), or an autonomous founda-
remanded to the institute mentioned in can. 1274, §1 tion, consists of goods or things, whether spiritual or
when the time is completed unless some other intention material, and either one or more physical persons or a
of the founder had been expressly manifested; otherwise, college directs it according to the norm of law and the
they accrue to the juridic person itself. statutes.
Number 75 The Legal Bulletin Page 11
members of the proposed public juridic person,
assuming it is constituted as an aggregate of
persons, need to develop rules and procedures for
members and the internal organizational order of
the public juridic person. This plan, similar to the
constitutions and directives of the Institute, is in
the statutes of the public juridic person.
The statutes must be approved by the canoni-
cally competent authority, constituting the public
juridic person.22 The statutes contain provisions
for the fundamental matters of a public juridic
person such as the following:
♦ its purpose; (cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)(cid:2)
♦ procedures for how it will govern itself and
petition and its supporting data and the statutes,
conduct its activities;
issues a Decree constituting the new public juridic
♦ criteria for membership and removal from
person and approving its statutes. When the
membership;
Decree is issued and the canonical and legal
♦ rights and duties of members;
transactions necessary to transfer ownership or
♦ administration and alienation of its property
control of the assets dedicated to the Apostolate
which is Church property;
have been completed, the Institute terminates its
♦ its relationship to the hierarchical competent
canonical responsibility for this specific expres-
authority constituting the public juridic per-
sion of its proper work. Individuals, members of
son;
the institute including superiors, may be a member
♦ the procedure for changes and hierarchical
of a new public juridic person and may even have
approval for changes of the statutes; and
rights to appoint members in the new public
♦ procedures for dissolution.
juridic person. The Institute can continue to
If an aggregate of things is constituted the
participate in the life of the new public juridic
new public juridic person, the provisions on
person. However, the Institute needs to differenti-
members is not relevant. Rather, the provisions
ate its former canonical responsibility for a former
will address appointment and removal of manag-
proper work and its participation as a member of
ers and representatives. The content and function
another public juridic person for its newly en-
of the statutes are similar to the constitutions of
trusted work. The new public juridic person is
the Institute and the Articles of Incorporation of
now in charge.
an American corporation. The secondary docu-
ment, which is more detailed, is similar to the
CCCCCOOOOONNNNNCCCCCLLLLLUUUUUSSSSSIIIIIOOOOONNNNNSSSSS
bylaws of an American corporation.
The issues addressed in this essay do not
The competent authority, after reviewing the
exhaust the matters that need to be considered in
22 83 CIC c. 117 No aggregate of persons (universitas the ultimate decision of an Institute to withdraw
personarum) or of things (universitas rerum), intending from an Apostolate. This essay has addressed the
to obtain juridic personality, is able to acquire it unless
initial issues that need to be considered.
competent authority has approved its statutes.
Part One and Two of this essay identified the
83 CIC c. 118: Representing a public juridic person
and acting in its name are those whose competence is context for favoring and focusing on a public
acknowledged by universal or particular law or by its
juridic person as the canonical successor to the
own statutes. Representing a private juridic person are
Apostolate of an Institute: it is to preserve the
those whose competence is granted by statute.
Page 12 The Legal Bulletin Number 75