§ 163. The Founder’s Right

An exception to what we have said (§ 161) about the administration of church property is constituted by the so-called founder’s right, or ktitor’s right (κτητορικὸν δίκαιον),[1] according to which the administration of the property of a church, or of an institution with a church purpose, does not belong to the guardianship elected for that purpose (the epitropy, § 128), but specifically to the particular person who obtains that right.

The founder’s right arose in the Christian Church when various pious Christians began, at their own expense, to build churches and to furnish those churches with everything needed for divine service to be worthily performed in them, and for the priests and other persons serving those churches to be assured of their support. This is shown especially once the persecutions ceased and the Christian faith became free in the Greco-Roman state. In commending this pious zeal of the persons concerned, the Church wished also to give testimony of her own gratitude to them, and so recognized to them certain privileges, both in the administration of church property and in the appointment of a priest to the church in question—and this not only to themselves personally, but also to their lawful heirs, subject to the canonically prescribed oversight of the competent local bishop. The Church recognized this also to those who should restore some deserted church and establish fixed revenues for its upkeep and for that of its ministers. These privileges, together with the obligations corresponding to them, were determined by formal legal prescriptions of church-civil legislation in the time of the emperor Justinian (527–565) and constituted the founder’s, or ktitor’s, right mentioned above.[2]

This right may be acquired over any church, urban or rural, over a monastery, and over any charitable institution dependent on the church authority. It may be acquired by any natural person, without distinction of class, sex, or calling, who is of the Orthodox faith and enjoys full church and civil rights. It may also be acquired by any juridical person existing on a lawful basis—thus any church congregation, various societies, religious foundations, and so on. Accordingly, any natural or juridical person possessing the qualities prescribed by law may become the subject of the founder’s right, provided only that it is in a position to found a new church, or to restore a deserted one, or to found a monastery or some charitable institution with a church purpose, and provided it can guarantee the means necessary for the upkeep of the church, monastery, or charitable institution in question. To grant and recognize this right to the person concerned, whether natural or juridical, only the competent church authority may do—or more precisely, that eparchial bishop in whose district the church, monastery, or charitable institution is founded—subject to the observance of the relevant, precisely established legal prescriptions.[3]

By recognizing the founder’s right to the person in question, the church authority—that is, the competent eparchial bishop—does not thereby cede to that person any of those spiritual rights over the respective object of the founder’s right which belong to the bishop by virtue of his archpastoral character. The bishop is the unconditional spiritual superior of every church and monastery, and likewise of every charitable institution with a church purpose found within his eparchy, irrespective of whether it was founded from the means of a natural or juridical person, or was founded in some other way. Accordingly, all the rights and duties that constitute the founder’s right concern solely and exclusively the external affairs of the respective object of that right. All these rights and duties assumed by the founder, or ktitor, are ordinarily set out in a founder’s charter (κτητορικὸν τυπικόν), which the founder and the competent eparchial bishop draw up by agreement, and which contains in detail everything concerning the building of the church institution in question, the means for the upkeep of that building and the support of the personnel who will serve at the institution, the obligations the founder must fulfill, and the founder’s relation to the institution itself and to the competent church authority. This founder’s charter, or typikon, once it is drawn up on a legal basis, acquires the force of a law binding for all future time both the person of the founder and the competent eparchial authority, and this charter is kept in the episcopal archive, so that everything established by it may be exactly carried out according to it, and so that the legal relations in question may be strictly and inviolably preserved.

According to the general content of the various founder’s charters that exist, the duties of the founder are chiefly these: 1. to see to the decent upkeep and adornment of the church; 2. to see to its lighting and to the singing in the church; 3. to see that church services are properly held at appointed times; 4. to see that at the services the authorities and benefactors, living and dead, are commemorated; 5. to see that the church is supplied with the necessary holy vessels, vestments, and books; 6. to preserve the property of the church unimpaired, to administer that same property well, and, so far as possible, to increase it; 7. to see that priests and other persons in the service of the church are paid a proper stipend; and 8. to safeguard the bishop’s rights over the church in question. What is said here concerning the church, as the object of the founder’s right, holds good, only in a different form, also for monasteries, or other church institutions that may be the object of the same right, and toward which the founder has duties determined by the typikon.

To these duties correspond the following rights of the founder: 1. to administer church property according to the general canonical prescriptions that govern the administration of church property, and to see to it that this property prospers, submitting his work in this to the supreme jurisdiction of the bishop; 2. to propose to the competent eparchial bishop a priest who is to serve at the church in question. The bishop examines the qualifications of the person proposed, and if he finds him worthy of the post for which he has been chosen, approves the choice and issues him the prescribed charter of appointment; should the person proposed not possess all the prescribed qualifications, or should the bishop, according to his own discretion, find that the proposed person is not suitable for the church in question, the founder will then propose another person, or even several persons, and the bishop will then choose the most worthy. 3. The founder also has the right to certain honors, which must distinguish him from the rest of the faithful—namely, that he have a place of distinction in the church, that his name be commemorated at the church services, that he have precedence at every church gathering, and so on.

The founder’s right ceases when the founder is unwilling or unable to perform all those duties established in the respective founder’s charter, and in particular if he administers church property poorly, if he lets that property decay, if he fails to see to the decent upkeep of the church, to the supplying of the church with everything necessary for church solemnity and to the support of the clergy at the church, if he disregards the ordinances of the church authority, and, in general, if he shows himself unworthy of the privilege that the Church recognized and granted to him as founder. And if the subject of the founder’s right is some juridical person—for instance, a church congregation—that congregation too will forfeit the founder’s right the very moment it deliberately transgresses any founder’s duty whatsoever, and it loses, like a natural person, all the corresponding privileges and rights, first of all the right to propose a priest and to administer church property. To take away the founder’s right, in such cases, from one or another natural or juridical person, is within the competence of the eparchial bishop, who then, according to his own discretion and in the sense of the canons, disposes of the church institution in question so that it may correspond to that church purpose for which it was founded, and for the sake of which all such institutions exist in general.

The founder’s right also ceases when the founder in question dies without having left lawful heirs, or without having by testament appointed another person to have the right of succeeding to it. In such a case church property passes into the ownership of the church congregation concerned, which then also assumes all the corresponding obligations of the original founder, and becomes the subject of the founder’s right in exactly the same way as if it, as a juridical person, had itself received that right from the very beginning.

This founder’s or ktitor’s right, with regard to the administration of church property, is today generally exercised, in Orthodox church congregations, by the parish epitropies (§ 128); while with regard to proposing the priest and other personnel in the service of the church in question, this same right is exercised by the church congregation through the corresponding elective assemblies, in those regional churches where the so-called church-national autonomies exist, as in the Metropolitanate of Karlovci or of Sibiu, and to some degree also in the Bulgarian Exarchate. In other regional churches the eparchial consistories, or the bishops, determine and appoint the parish priests, and only in very rare cases is this right recognized to individual church congregations.

Natural persons possessing the founder’s right are today very few in the Orthodox Church generally. This is due to the fact that the religious zeal of the Christians of the old era has disappeared, so that few such persons are found to whom the Church could recognize the founder’s right. And as for the former holders of this right, it was lost in the course of time by prescription (usucapio) in favor of the church congregations concerned, which thereby, as juridical persons, became the subject of that right.[4]