§ 159. The Acquisition of Church Property

The sources of church property in the early times of the Church consisted of the voluntary offerings of Christians—offerings of various goods, produce, money, and so forth.[1] Tithes are also mentioned (δεκαταί, decimae), which the faithful made over for the benefit of the Church and clergy, although this was not some institution to which all were bound, but simply voluntary contributions made by the wealthier members of the Church out of a sense of piety.[2] In the course of time the Church began to acquire various immovable goods as well,[3] and in the conciliar canons of the fourth century fields are mentioned that were in the ownership of the Church and served as a source for covering church expenses.[4] The Church received all these various goods from the gifts of her pious members. But at first the Church could not regard these goods as her stable possession, since, on account of the hostile relation in which the pagan state authority stood toward her, these same goods could at any moment be seized from her, as indeed happened. For this reason, as soon as good relations arose between the Church and the state, the Church took care to obtain the support of the state laws, both for the acquisition of property and for its retention. And the state authority, beginning with Constantine the Great, generously extended this support to the Church. Since the chief source of the increase of church property consisted in the gifts of pious Christians, these same gifts, in order to become a lawful possession of the Church in civil terms as well, were now made according to the prescriptions of the civil laws, and, having passed in the sense of those laws into the ownership of the Church, enjoyed the protection of the state authority in exactly the same way as every other private ownership.

In Roman law a distinction is drawn between acquisition of property for cause of death (mortis causa) and acquisition through contract among the living (non mortis causa, that is, actus inter vivos).[5] The prescriptions of that law on this question hold good for the Church as well, to whom, just as Roman legislation recognized the lawful capacity to own property, present-day legislation likewise recognizes it.[6]

I. Among the ways in which the Church may come to property for cause of death, the first place is occupied by succession by will (ἐκ τῆς διαθήκης, ex testamento). The right of the Church to inherit property from pious Christians was recognized to her by Roman legislation as soon as the Christian faith became the religion of the state.[7] This same right is recognized to her also by present-day legislation in the respective states;[8] naturally, subject to the relevant legal prescriptions regarding the validity of the will.[9]

Besides succession by will, the Church has a right of succession also in certain cases when someone dies without having made a will—namely, the right of intestate succession (ἐξ ἀδιαθέτου, ab intestato). This concerns chiefly the property that remains after the death of persons belonging to the clergy; but, according to what we find in the sources of church law, it concerns also other persons outside the clergy who die without a will. As regards the former, when they die intestate, it is ordained that their relatives to the fourth degree have the right to inherit the estate that remains; if there are no such relatives, the whole estate passes into the ownership of the Church and is applied to church needs and to the benefit of the charitable institutions the Church administers.[10] Greco-Roman legislation ordains this same rule with small changes,[11] and its relevant prescriptions entered the canonical collections.[12] Today this right of the Church is regulated by the particular legislation of each individual state.[13] But besides clergy dying intestate, Greco-Roman legislation recognized the Church’s right of succession also with regard to certain laymen who leave no will. It was an old custom for heirs to regard it as a moral duty to devote some part of the inherited estate to the church for the repose of the deceased’s soul. This custom was made law in the ninth century, and it was ordained, first for those who die as prisoners of war, that if the state is to inherit the estate left after them, a third part of that estate is to be handed over to the church for the repose of their souls.[14] Constantine Porphyrogenitus extended this law to all who die intestate and have left no children of their own;[15] and in the fourteenth century Andronicus Palaeologus the Elder prescribed that after the death of a husband or wife, one part of the estate should be inherited by the surviving spouse, a second part by the parents of the deceased spouse, and a third by the church.[16] These laws were incorporated into the canonical collections and became a general norm in the Greek Church.[17]

The richest source of church property consists of bequests for pious purposes (λήγατα εἰς εὐσεβεῖς αἰτίας, legata ad pias causas). When these bequests are spoken of as church property, this is to be understood in a relative sense, for the Church is not the owner, in the ordinary legal sense, of what these bequests consist in; rather, to her, or to the local bishop, belongs only the supreme right of oversight over these bequests, together with the right to control their administration and to take suitable legal measures should that administration not be carried out in good order and according to the purpose of the testator. In this sense the institutions arising from these bequests are called church foundations or institutions. The object of the various bequests that the sources of church law mention consists in the maintenance of some house of prayer for the salvation of the soul, or in helping those in need of brotherly assistance—namely: the maintenance of hospices for strangers, houses for the poor, for the sick, for orphans and abandoned children, for the aged, for young women, for the upbringing of youth, and so on.[18] These and similar institutions enjoyed particular privileges, which the Greco-Roman emperors generously bestowed on them. Among such privileges were: that a bequest for a pious purpose was free from the quarta Falcidia;[19] that it had to be delivered within six months of the day the will was made public, failing which the church was to receive all the produce accruing from the day of the testator’s death, or else twice the value of the bequest, should the matter come to litigation;[20] that twice the amount likewise had to be paid when the heirs refused to acknowledge the bequest;[21] and that, where no executor of the bequest had been named, the right of executing it belonged to the bishop,[22] and so on. These and many other privileges of Justinian’s legislation regarding bequests for pious purposes,[23] were confirmed, and even further extended, by the succeeding Greco-Roman emperors, who, among other things, permitted such bequests to be made even by persons otherwise deprived by law of the right to make a will.[24] The legal prescriptions of Greco-Roman legislation on bequests for pious purposes entered the canonical collections of the Orthodox Church;[25] and the present-day prescriptions on this matter are regulated by the particular legislation of individual states.[26]

II. Besides the case of death, the Church may acquire property also through various contracts among the living (actus inter vivos), namely either by gift (δωρεά, donatio) or by purchase (ἀγορασία, emptio). A gift is a contract whereby someone gives something of his own to the church, or lawfully promises to give what he is not legally bound to give, with the intention thereby of increasing the church’s estate and being pleasing and beneficial to her.[27] In the matter of gifts to the church, general church law recognizes to her certain special privileges, among them: that a gift becomes binding even when only promised and not yet received;[28] and that ownership of the donated thing becomes complete, without possibility of revocation.[29] With some minor modifications this holds good for the Church today as well.[30] — Purchase is a contract whereby some thing is transferred to another for an agreed price.[31] By general church law the Church may buy any thing offered for sale; and by analogy with the prescriptions of Roman law, there also pass into church ownership those things which the respective administrators of church property bought for themselves, but with church money.[32] The present-day legislation of individual states speaks similarly of purchase by the Church.[33] — The other contracts by which the Church may acquire property are the same as those for private property.

Just as by contracts, the Church may acquire property also by prescription (χρονία χρῆσις, παραγραφῇ, usucapio, praescriptio longi temporis). Prescription denotes a particular means by which uncontested ownership is obtained over a thing that someone holds in his own hand as owner for a period fixed by law.[34] For the validity of a prescription there must exist a lawful ground (εὔλογος αἰτία, justa causa) and full conviction that one was entitled to hold a thing in one’s own possession (καλὴ πίστις, bona fides).[35] In general, on the question of prescription, canon law follows Roman law.[36] As a privilege to the Church there was also an extraordinary prescription with regard to her estate. Justinian at first prescribed for the Church, and for bequests for pious purposes, a period of one hundred years,[37] and afterward limited that period to forty years.[38] The Church enjoys certain privileges in this regard even today.[39]