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About proposals to transfer Catholic grade schools away from pastors’ control, not so fast

March 1, 2018

Pardon my suspicious take on the line that eliminating priests’ responsibilities for Catholic schools in their parishes “will let priests focus on the pastoral and spiritual aspects of schools and parishes”—I can imagine Henry VIII’s henchmen sarcastically making similar comments to monks being expelled from their monasteries—but, admittedly from afar, this proposal has the potential to be a major Church property grab.

Those familiar with the facts Down Under can tell me whether my concerns are well-founded, but, in a nutshell: if Catholic grade schools in Australia are owned by Catholic parishes, then the establishment of self-perpetuating boards, independent from effective ecclesiastical governance, as owners and directors of those schools, is canonically an “alienation” (that is, a transfer of Church property rights) that must meet certain canonical criteria for liceity and even validity even if no money changes hands and even if the pastor is happy to rid himself of the parish school.

You see: Parishes are “juridic persons” (c. 515 § 3), juridically under the direction of pastors (c. 532) who are charged with, among many other things (e.g., cc. 528-530), correctly administering the property of the parish (e.g., c. 1282), which property includes all parish assets (c. 1256) which assets can be “alienated” (sold, leased, mortgaged, even given away) only in accord with canon law (mainly, Book V of the 1983 Code). The canonical consequences of not following the canons on alienation range from an episcopal “Tsk-tsk, don’t do that again”, through a valid-but-illicit act that occasions accusations of negligence in office (c. 1389), to invalid transfers that can result in civil lawsuits against the transfer and personal liability for restitution (cc. 1281, 1296).

Moreover, organizational actions (such as disposing of parish property) that do not follow internal rules (such as canon law) can ‘put a cloud on the title’ civilly, in turn impacting title insurance and civil registration of the deed.

So bottom line, there’s a lot to watch out for here.

Oh, if someone asks, no, Catholic schools, even those established by parishes and dioceses, are not themselves juridic persons absent a decree establishing them as juridic persons (c. 114).

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Perhaps the following sources and studies would be helpful.

[Pont. Council Leg. Texts] (Castillo Lara), Resp. ad dub. re Can. 1263 (20 mai 1989), AAS 81 (1989) 991. Latin on-line here. Summary: Schools administered by religious are not thereby juridic persons. Cites: 1263.

Pont. Council Leg. Texts (≠), nota, “La funzione dell-autorità ecclesiastica sui beni ecclesiastici” (12 feb 2004), Communicationes 36 (2004) 24-32. Summary: As titled, summary of ecclesiastical authority over temporal goods. Cites: CIC 0113, 0114, 0115, 0116, 0117, 0118, 0119, 0120, 0121, 0122, 0123, 0305, 0325, 0331, 0333, 0392, 0494, 1254, 1255, 1256, 1257, 1259, 1273, 1276, 1277, 1279, 1281, 1285, 1292, 1301, 1308, 1309, 1310.

Patsy James Gonsorcik (American religious, 1943-), The canonical status of separately incorporated healthcare apostolates in the United States: current status and future possibilities for the public and private juridic person, (SPU/USP doctoral diss., 2001) 298 pp. Abstract and/or dissertation here.

Bernard Waters (New Zealand priest, ≈), The canonical status of diocesan and parish schools in New Zealand, with particular reference to the Diocese of Auckland, in the light of the Private Schools Conditional Integration Act 1975, (SPU/USP doctoral diss., 1999) 336 pp. Abstract and/or dissertation here.

Brian Dunn (Canadian priest, 1955-), The Catholic schools in Newfoundland: an investigation into their nature according to the Code of canon law, (SPU/USP doctoral diss., 1991) 356 pp. Abstract and/or dissertation here.

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