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To work for the proper implementation of canon law is to play an extraordinarily constructive role in continuing the redemptive mission of Christ. Pope John Paul II |
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15 may 2022 |
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With sabbatical support from Sacred Heart Major Seminary, Detroit MI |
The Rules of Canon Law by Vittorio Bartoccetti: Translation with Commentary
This page is a personal research tool and undergoes frequent and considerable revision and addition. It is not yet intended for scholarly use or distribution.
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• Scholion on Sources, here. • Scholion on Studies, here. • Bartoccetti's Introduction, here. |
• Master List of Bonifacian Rules, here. • Original Texts of Bartoccetti Quotations, here. • Analytical Examination of Rules 01-88, here. |
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Overview |
Msgr Vittorio Bartoccetti (1893-1975), a canonist of wide Roman curial experience, wrote the most extensive modern commentary on the canonical "Rules of Law", especially those 88 legal maxims promulgated by Pope Boniface VIII in the late 13th century and still part of canonistics to this day. This page is an effort to make his work more widely accessible with an eye toward promoting better understanding of and enhanced facility in the use of these venerable canonical expressions.
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Original title |
Victorius Bartoccetti (Italian priest, 1893-1975), De Regulis Juris Canonici: Regularum in Libro VI° Decretalium earumque praesertim cum Codice J. C. relationum brevis explanatio, (Angelo Belardetti, Roma, 1955), 306 pp.
Imprimatur, Vicariate of the City, 31 March 1955. + Aloyisius Traglia, Tit. Abp. of Caesarea in Palestine.
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Notes |
• Except as otherwise noted all translations are mine. I have rendered more lightly Bartoccetti's curial Latin than has been my wont in translating other Latin, especially legal, materials. Bartoccetti often left a technical narrative style and offered his views more conversationally so I trust my own less rigid approach to his text is not out of place. If my renderings make Bartoccetti sound more like me than him (say by my often preferring active voice to his passive) I apologize to his honorable memory. That said, I hewed more closely to the Latin text when it came to translating the Roman and canonical rules themselves. All indications of emphasis in Bartoccetti's text are Bartoccetti's, in my texts they are mine. I used square brackets [ ] to introduce common corrections or supplements to Bartoccetti's materials but braces { } to insert my own brief asides. My longer observations are placed in off-set Comment boxes.
• English translations of Sacred Scripture are taken from the Holy Bible, Revised Standard Version, Catholic Edition; Pio-Benedictine Code translations are taken with some minor modifications from my published translation thereof; and Johanno-Pauline Code translations are from the CLSA (2019). For more information on the Latin texts and English translations of Canon and Roman Law see the Scholion on Sources, below.
• Notwithstanding the evident utility of putting Bartoccetti's study into English it must be recalled that, because Latin is the controlling language of both Roman Law and of Canon Law and any translations therefrom must yield to the original and binding text, and because so much commentary on the Rules is keyed to the original Latin texts thereof, I have included, in italics, the Latin text of all original source materials, chiefly, as found in the Corpus Iuris Civilis and Corpus Iuris Canonici. The “Code” to which Bartoccetti referred was the Pio-Benedictine Code of Canon Law promulgated in 1917. Herein the terms “Code”, “1917 Code”, and “Pio-Benedictine Code” are used interchangeably and without regard for how Bartoccetti might have phrased it in his work. In-text citations to the 1917 Code are abbreviated "(1917 CIC …)” with the relevant canon number.
• Bartoccetti generally presents his discussion in this order: first he quotes the specific rule to be treated, then lists the Pio-Benedictine canons (if any) for which the rule is cited, next the sources for rule (usually from Roman Law), and finally his discussion of the rule. Sometimes Bartoccetti varies this order of presentation, beginning, for example, his discussion of rule before he has fully set out its sources. Where these variations were minor I did not reproduce them (this, to facilitate readability in my own presentation of his thoughts) but, where the variations were more significant (see, e.g., Rule =), I have preserved Bartoccetti's approach.
• I have introduced a clearer order of presentation for some of Bartoccetti's materials (e.g., always presenting lists of canons or rules in numerical order and historical sources in chronological, avoiding inconsistent abbreviation conventions, and so on). I corrected occasional typographical errors in Bartoccetti's work without calling attention to them but noted more serious errors or omissions and, as needed, discussed them.
• In offering quotations from secondary sources Bartoccetti always (as far as I can tell) acknowledged them as quotations, but he often did not identify where the quotation was taken from or he provided incomplete and/or imprecise references for them. I have tracked down as many of Bartoccetti's quotations as I could and tried to regularize their citations. Moreover, not a few of Bartoccetti's 'quotations', particularly from the Digest, more resemble paraphrases than quotations, at least, they are not precise quotations from the commonly accepted editions of, say, Mommsen. Where I was confident I could do so while respecting Bartoccetti's main point, I freely substituted the standard Latin texts for Bartoccetti's actual renderings. An asterisk (*) indicates that the original text of materials that Bartoccetti had translated into Latin is available at the appropriate page number, here, and indicates that a full citation of various ecclesiastical documents utilized by Bartoccetti are given, here. Frequently cited works are listed in the Scholion on Studies, below, while infrequently cited works are noted when they arises (see, e.g., Rule 64).
• Bartoccetti's pagination is indicated in red but, given the differences between Latin syntax and English, these markers are sometimes approximate. In at least some copies of his book pages 168-175 are printed in a jumbled order.
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Bartoccetti's discussion on the canonical Rules of Law assumes some understanding of the fontes essendi (authorities that make the law) and the fontes cognoscendi (resources wherein one finds the law) of medieval Canon Law and of ancient Roman Law. The following much-abbreviated introduction to these materials focuses on what is necessary to appreciate Bartoccetti's discussion.
The "Rules of Law" in Canon Law
Fontes essendi
Two popes issued compilations of the Rules of Law, namely, Gregory IX (reg. 1227-1241) who promulgated eleven Rules in 1234 and Boniface VIII (reg. 1294-1303) who promulgated eighty-eight Rules in 1298. Almost all of Bartoccetti's treatise examined the Bonifacian provisions; only a brief review of the Gregorian norms appeared in Appendix III.
Fontes cognoscendi
For most of the period relevant to this discussion most of canon law was gathered into what is known as the Corpus Iuris Canonici, consisting of six parts (more information here), two of which parts are relevant for our work. The Gregorian Rules of Law appeared in a designated title at the end of Book Five of that pope's Decretales (discussed here and here) and the Bonifacian Rules appeared in what amounted to an appendix at the end of Book Five of his Decretals (commonly known as the Liber Sextus.) At present scholars of Canon Law accept, despites its acknowledged flaws, the so-called Friedberg edition of the Corpus Iuris Canonici (1888, reprinted variously) for the text of, among other things, the canonical Rules of Law. I will utilize the Friedberg text for the canonical Rules even though Bartoccetti (intentionally or inadvertently) phrased some these materials differently. In citing the Corpus Iuris Canonici, while providing a simpler citation along traditional lines, I will also provide a citation to Friedberg (seu Friedberg)
Thus, the eighty-eight Bonifacian rules, the focus of Bartoccetti's study, are found at Liber Sextus V, app. De Regulis Iuris (1298), seu Friedberg II: 1122-1124, while the eleven Gregorian rules are found at Quinque Libri Decretalium V, t. 41 De Regulis Iuris, seu Friedberg II: 927-928.
Most of the Corpus Juris Canonici has not been translated into any vernacular language. The few English renderings of the canonical Rules of Law, therefore, including mine herein, stand or fall or their own merits.
The "Rules of Law" in Roman Law
Fontes essendi
Justinian the Great (reg. 527-565) promulgated two-hundred eleven Rules of Law as part of his Digest. In addition, he promulgated a number of other works, notably his Code, some of which works contained materials that figured in the development of the canonical Rules of Law. These works (the Code, the Institutes, the Digest, and the New Constitutions) comprise what is known as the Corpus Iuris Civilis.
Fontes cognoscendi
Since its rediscovery in the 11th century the Corpus Iuris Civilis has undergone a complex and fascinating editorial history. While critical editions of these works are now available there is not absolute agreement on all texts and some differences among editors exist. The four parts of the Corpus Iuris Civilis are considered separately here.
1. Code of Justinian (529)
The Code of Justinian figures importantly in our study of the canonical Rules of Law. At present scholars of Roman Law regard Paul Krüger's version of the Code (1877) as the most accurate. It is available here and, by titles, through here. Bartoccetti occasionally presents passages from the Code slightly differently than does Krüger but I have adapted all such variations to Krüger.
Two English translations of the Code are available. The first complete English translation of the Code was produced by Samuel Parsons Scott and published posthumously in 1932. Notwithstanding the criticisms visited upon Scott’s work (resting as it does on flawed Latin versions of the Corpus) it is worth consulting and can be found here. The second and more esteemed English translation of the Code produced by Fred Blume first appeared in 2007 and most recently in 2016. It is available here. While, as noted above, all translations of the Code herein are mine I often consulted Scott and Blume in arriving at them.
Bartoccetti used a wide variety of citation styles to reference the Code. I have regularized all of these references as follows: (1) Code, (2) book thereof in Roman numerals, (3) title within the book, (4) number of the remark within the title, (5) section within the number if needed, and (6) author of the passage in parentheses.
2. Institutes of Justinian (533)
The Institutes of Justinian figure slightly in our study of the canonical Rules of Law. At present scholars of Roman Law regard the Krueger version of the Institutes (1867) as the most accurate. It is available here and, by titles, through here.
There are several English translations of the Institutes. My preference is for the Latin-English facing pages version produced by Peter Birks & Grant McLeod (Cornell, 1987) in 160 pages. While, as noted above, all translations of the Institutes herein are mine I consulted Birks & McLeod in arriving at them.
3. Digest of Justinian (529, re-promulgated in 534)
The Digest of Justinian figures very importantly in our study of the canonical Rules of Law. At present scholars of Roman Law regard the Mommsen-Krüger version of the Digest (1878) as the most accurate. It is available here and, by titles, through here. Bartoccetti sometimes presents passages from the Digest rather differently than does Mommsen-Krueger but I have adapted all such variations to Mommsen-Krüger. Minor discrepancies are not highlighted but more significant variations are noted herein. There is reason to think that Bartoccetti made some use of Pothier's early-modern edition of the Digest (Pandectae, available through here) in preparing his own text (see, e.g., Bartoccetti's conflation of Digest quotes in his discussion of Rules 57 and 59).
Two English translations of the Digest are available. The first complete English translation of the Digest was produced by Samuel Parsons Scott and published posthumously in 1932. Notwithstanding the criticisms visited upon Scott’s work (resting as it does on flawed Latin versions of the Corpus) it is worth consulting and can be found here. The second and more esteemed English translation of the Digest appeared in 1985 under the direction of Alan Watson. While, as noted above, all translations of the Digest herein are mine I often consulted Scott and Watson in arriving at them.
A third English translation of some of the Roman Rules of Law is available in various editions of Black's Law Dictionary. The Latin text upon which this translation is based is not indentified.
Bartoccetti used a wide variety of citation styles to reference the Digest. I have regularized all of these references as follows: (1) Digest, (2) book thereof in Roman numerals, (3) title within the book, (4) number of the remark within the title, (5) section within the number if needed, and (6) author of the passage in parentheses.
4. New Constitutions of Justinian (never promulgated as a set, but issued from 535-565)
The New Constitutions, or Novels, of Justinian figure very slightly in our study of the canonical Rules of Law. At present scholars of Roman Law regard the Schoell & Kroll (1895) version of the (Latin version of mostly Greek originals) Novels as the most accurate. It is available here and, by titles, through here.
Two English translations of the Novels are available. The first, not quite complete, English translation of the Novels was produced by Samuel Parsons Scott and published posthumously in 1932. Notwithstanding the criticisms visited upon Scott’s work (resting as it does on flawed Latin versions of the Corpus) it is worth consulting and can be found here. The second and more esteemed English translation of the Novels by Fred Blume appeared in 2008 and is available here. While, as noted above, all translations of the Novels herein are mine I consulted Scott and Blume in arriving at them.
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Dinus seu Mugellanus |
Medieval Studies
Dinus Rossini of Mugello (Italy) is widely accepted as the compilator of the canonical Rules of Law promulgated by Pope Boniface VIII.
• Tractatus Dyni super regulis iuris Una cum accessionibus et correctionibus Magistri petri caponis in Utroque iure Baccalarii feliciter incipit (~1298), (Antoine Caillaut, ~1496-1498), [herein, Tractatus Dyni]. ▪ Notes: On the place of Dinus in canonistics see L. Falletti, s.v. "Dinus Mugellanus", DDC IV (1949): 1250-1257, and J. Buckley, s.v. “Dinus Mugellanus (Rossoni)”, NCE IV (1967) 871. A 1612 edition of Dinus' work, under the modified title of Commentarii in regulas Iuris Ponitificii ([Coloniae: Butgenius & Henning]), in turn resting on editions that appeared in 1548 and 1563, is available, here. In this study I have provided page numbers, though the Caillaut edition lacks them, and line 'incipits' to facilitate consultation. I consulted a Pranava Classic Reprint of the Caillaut edition. |
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Renaissance Studies
• Petrus Peckius, Folio I, "De Regulis Iuris", in Petrus Peckius the Elder (Pieter Peck, Dutch layman, 1529-1589), Opera Omnia in unum volumen redacta ac de nouo in lucem producta [1647], (Hieronymum & Verdussen, Antwerpiae, 2d ed., 1666) 896 + pp., at 1-381, [herein, Peckius, De Regulis]. ▪ Notes: Some indexes identify this work as: Cl. Viri Petri Peckii Ziricaei olim acad. Lov. Jur. Professoris in magno senatu Belgico consiliarii opera omnia [1647].
• Jean Baptiste Dantoine (French layman, † 1720), Les Regles du Droit Canon, dans la même ordre, qu’elles sont disposes au dernier tître du cinquiéme Livre du Sexte, & au dernier tître du du cinquiéme Livre des Décretales [1720], (Stryckwant and de Vos, Brusselles, 2d ed., 1742), 468+ pages, [herein, Dantoine, Regles] ▪ Notes: On the place of Dantoine in canonistics see L. Falletti, q.v. "Dantoine (J.-B.)", DDC IV (1949): 1020. The 1720 edition of Dantoine is available, here. I consulted a Wentworth reprint of the 1742 edition.
• Johann Georg (Anacletus) Reiffenstuel (German Capuchin, 1641-1703), Jus Canonicum Universum [1700], (Parisiis: Apud Ludovicum Vives, 1864-1869), in 6= volumes. ▪ Notes: On the place of Reiffenstuel in canonistics see, e.g., R. Naz, "Reiffenstuel (Anaclet)", DDC VII: 547-548; D. Bonner, "Reiffenstuel, Anacletus (Johann Georg)" NCE2 XII: 34. |
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Modern Studies
• Edward Roelker, "An introduction to the Rules of Law, The Jurist 10 (1950) 271-303 and 417-436.
• Francis Reh (American priest, 1911-1994), The rules of law and canon law, (Gregorian doctoral diss. 191, 1939) 98 pp. ▪ Notes: Reh biograph.
• Vittorio Bartoccetti (Italian priest, 1893-1975), Le Regole Canoniche di Diritto in relazione al Codice Piano-Benedettino, Roma Institiuto Grafico Tiberno, 236 pp. ▪ Review: G. Creusen, Gregorianum 21 (1940) 304.
• Luigi De Mauri (Ernesto Sarasino, Italian =), Regulae Iuris nova collectio locupletissima aC textus summa diligentia exacta (=), ([Augustae Taurinorum, L. Maria Antiquaria Patristica], 3d ed., 1905) 146 pp. ▪ Notes: While it is simply a list of legal rules, arranged somewhat alphabetically and with various amounts of source citations, Bartoccetti used this work often in developing his materials and so serves as a resources for understanding his work better. Much of the 11th edition (1976) of De Mauri is available on-line, here.
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Scholion on legal terms |
Besides the issues common to any translation of Latin into English this translation of Bartoccetti's legal text requires the rendering of various canonical and Roman legal terms into an English common law context. Except as noted otherwise I have observed the following conventions:
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Title |
The Rules of Canon Law by Vittorio Bartoccetti (1955) A translation and commentary by Edward Peters
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Bartoccetti's Preface
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In 1939 I published a small work, The Canonical Rules of Law in Relation to the Pio-Benedictine Code (Le Regole Canoniche di Diritto in relazione al Codice Piano-Benedettino, Roma Institiuto Grafico Tiberno, 236 pp.), containing a thesis prepared by me toward a degree from the Roman University.
This volume has since sold out and I was asked by some friends to prepare a new edition. I decided to translate my text into Latin, as Latin is more widely understood among those concerned with canon law, and to provide a few additions and modifications whereby I might better meet the expectations of readers.
Comment: The irony of translating out of Latin a work that was deliberately translated into Latin has not escaped me. Bartoccetti's motive, however, for putting his original Italian work into Latin in the 1950s, namely, to bring these important materials to a wider readership, is my rationale for putting Bartoccetti's Latin version into English in the 2020s.
Whether I have actually achieved this goal, dear reader, you shall judge. I now entrust myself to your kindness asking that you ignore matters you might find imperfectly expressed or clumsily omitted, attributing these faults not to my negligence or inattentiveness but to the lack of time available to me for corrections.
Moving through these materials you will find certain explanations of individual rules repeated especially in regard to matrimonial laws, actions, and exceptions; please pardon these repetitions as I would rather preserve than exclude them with the same goal as above, namely, that these concepts be effectively driven home.
Farewell, and be mindful of me before God!
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Bartoccetti's
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003 Introduction
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01-20
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029 Analytical Examination of the Individual Rules
Rule 01. An ecclesiastical benefice cannot be licitly obtained without canonical institution. Beneficium ecclesiasticum non potest licite sine institutione canonica obtineri.
Rule 01 is cited for one [sic] Pio-Benedictine provision:
• 1917 CIC 1443 § 1. No one shall take possession of a benefice conferred on himself, either by his own authority, or without giving the profession of faith, if it concerns a benefice for which this profession of faith is prescribed.
Comment: Oddly, Bartoccetti references only one of three Pio-Benedictine provisions that, as Seredi confirmed (Fontes Codicis IX: 111) and as Bartoccetti himself noted in Appendix 6, draw on Rule 01, omitting thereby the two much more direct uses of Rule 01 in the 1917 Code, namely, 1917 CIC 0147 § 1, "No ecclesiastical office can be validly obtained without canonical provision" and, 1917 CIC 0332 § 1, "Whoever is to be promoted to the episcopate, even if he is elected, presented, or designated even by a civil Government, needs canonical provision or institution by which the Bishop is constituted in a vacant diocese, which only the Roman Pontiff can give". Disconcerting as this omission is, coming at the outset of his study, one can only see it as one of Bartoccetti's 'clumsy omissions' and assure readers that such lacunae are few.
Discussion:
It might seem strange that this particular norm is placed first among the Rules of Law despite its figuring so slightly among general legal principles.
Dinus extensively discussed the teaching on conferral of benefices, on investiture, and placing in possession, concluding that the institution consisted of three elements. He treated the ability (habilitate) of the one instituting and the one instituted, the time at which the ability was required, the effects of lacking this ability or suitability, and so on.
It is easy to understand why Boniface VIII decided to give great importance to such a norm: not much time had passed since the struggles over investiture and the interference by lay powers in ecclesiastical provisions – such things being the almost inevitable effects of feudalism – and these were still in Boniface's time very frequent and destructive.
Today such matters seem more historical and 030 accordingly the Pio-Benedictine Code cites this Rule but once (in 1917 CIC 1443 § 1) applying it only in regard to the placing of one in possession of a benefice. The Rule could have been cited in Canon 1446 that establishes an equivalent possession acquisition of a benefice upon three years of peaceful possession thereof, provided there was good faith always and simony was absent. Before the Pio-Benedictine Code this three-year period of prescription as induced by Chancery Rule 36 was liable to various exceptions concerning which one may consult Reiffenstuel (= pp 19-23). The Rule can easily be cited in regard to Canons 2394 and 2395 that assign penalties for illegitimate conferral and illegitimate acceptance of benefice.
Rule 02.
Rule 03.
Rule 04.
Rule 05.
Rule 06. No one can be bound to the impossible. Nemo potest ad impossibile obligari. Rule 06 is not cited for any Pio-Benedictine provision.
Sources:
The principle is self-evident if we speak of physical impossibility and it is reasonable if we speak of moral or juridic impossibility. Already in Roman law are found the following assertions on which our canonical Rule 06 depends:
• Digest L, t. 17, n. 185 (Celsus). There is no obligation to the impossible. Impossibilium nulla obligatio est.
• Institutes III, t. 19, n. 11. If an impossible condition is added to some obligations the stipulation is worth nothing. A condition is considered impossible when nature is such an impediment that it cannot exist. Si impossibilis condicio obligationibus adiciatur, nihil valet stipulatio. Impossibilis autem condicio habetur, cui natura impedimento est quo minus existat.
• Digest XXXXV, t. 1, n. 69 (Ulpian). Nor is a penalty brought about by an impossible thing. Nec poena rei impossibilis committetur.
• Digest L, t. 17, n. 188 (Celsus). Things prohibited by the nature of things are confirmed by no law. Quae rerum natura prohibentur, nulla lege confirmata sunt.
• Digest L, t. 17, n. 31 (Ulpian). 041 What is impossible can be comprehended by no agreement or stipulation. Quod enim impossibile est, neque pacto neque stipulatione potest comprehendi.
Discussion:
Commenting on Rule 06 Dinus Mugellanus said “The Rule intends to say that no one can be obliged to that which by nature of fact or in law is impossible. It is so in contracts and final testaments.” {cite=}
As is obvious the scope of the Rule is quite expanded when it is extended not only to impossible natural things but to things impossible in law, namely, to illicit matters. There is a ready application of the norm to the marriage contract in regard to attaching to it a prohibition against illicit intentions or agreements (1917 CIC 1086 and 1092) and even more to the consequences of such additions which, namely, prohibit that they be proven in a trial according to Canon 1971 for the convenience of the culpable [party] because “No one obtains an action from his own wrong-doing.” Digest XLVII, t. 2, n. 12 § 1 (Ulpain). Nemo de improbitate sua consequitur actionem.
The Rule is never cited among the sources of the Code, I think, because it is too generic and therefore could be cited almost constantly and could have been conveniently recalled for Canon 1307 § 1 which defines a vow namely as a contract with God; notice that a vow must be “about a possible and better good”, such that when the possibility [of fulfillment] ceases in the concrete, that is, considering attendant circumstances of person, place, time, and so on, a vow ceases on its own although, if the vow had been accepted and confirmed by the Church, permission from the Church is required. It could also have been cited for those 042 canons that treat of conventional simony Canons 185, 727-730, 1441, 1446, 1465 § 2, 2371, and 2392 in that a simonical contract is a juridically impossible thing.
Perhaps it could be recalled with regard to Canon 1516 by which it is forbidden to accept gifts and bequests for pious causes if there are provisions against the approval and vigilance of the Ordinary attached for such a provision is illicit. Canon 1517 sets out the criteria by which the Holy See or the Ordinary can change pious dispositions when they observance is impossible.
There should be noted the great difference between those impossible obligations which are arduous and difficult to observe, although sometimes due to the weakness of corrupted nature, they might be called impossible to observe by certain persons. That which is impossible for man without grave of divine assistance can become possible with this efficacious grace which therefore should be humbly and fervently sought. They should not be heard who wish to be loosed from the bond of marriage, indissoluble by divine institution, by alleging harm to themselves coming from the bond because, say, they fear they might enter an adulterous relationship, even if they suffered real grievous harms from the real spouse and they may strive to liberate themselves from a state too difficult. For in such a case they are asking from the Church something impossible because not even the pope, but only God, can relax the bond of valid marriage. The likewise the Church does not hear priests who wish to show that the observance of the law of celibacy is impossible for them, as is obvious.
Rule 07. Personal privilege follows the person and is extinguished with the person. Privilegium personale personam sequitur et extinguitur cum persona. Office.
045 Rule 08. Who is evil once is presumed always to be evil. Semel malus semper praesumiter esse malus.
Rule 08 is cited for one Pio-Benedictine provision:
• 1917 CIC 1825 § 1. A presumption is a probable conjecture about an uncertain matter; it can be of law when it is established in the law; or [it can be] of man that is formed by the judge.
Comment: The canonical definition of a 'presumption' is problematic and that matter needs to be addressed at some point. Briefly, a "conjecture" about an uncertain matter suggests a possible, sometimes probable, conclusion drawn about a matter, whereas a "presumption", more properly speaking, legally obviates the need to exam a matter at all.
Discussion:
Obviously Rule 08 must be taken with a grain of salt for otherwise it would be entirely contrary to the evangelical spirit. Everyone knows that the will of man changes up to the very end of life and is sometimes inclined to good and sometimes to evil. For ‘no one is good’ according to Our Lord Jesus Christ ‘but God alone’. (Mark X: 18). If this Rule were taken too severely it would exclude the sincere conversion of sinners and the labor of the pastors of the Church, struggling to recall lost sheep, would be useless.
Therefore this Rule should be understood together with a Rule of Roman Law “=” {add cite}. Such a provision is crucial in penal law by which a delict must be proven, not simply presumed, and the accused is to be considered innocent as long as his culpability has not been proven.
Nevertheless one who has sinned in the past can be supposed ready to sin also in the present, this, from the logical conjecture ‘operation follows being’ (operatio sequitur esse). One who has shown himself mendacious, deceitful, and so on, will be able to be such also now, because a bad tree cannot produce good fruit. This Rule seems especially applicable in the assessment of testimony, 046 the authority of which depends greatly on the truthfulness of the deponent, and of no value would be the testimony of mendacious man.
The citation of this Rule in the definition of a presumption is not happy: it would better have been cited for Canon 1757 § 2 by which perjurers and the infamous are repelled from offering testimony for being suspect; recidivism, concerning whom Canons 2208, 2209 § 4, and 2311 § 2 is relevant in the assignment of penalties. Rule 75, which has a strict relation with Rule 08, should also be recalled.
Comment: 1. The suggested usefulness of Rule 08 toward illuminating 1917 CIC 2209 § 4 is not evident. 2. Black's Law Dictionary softens the severity of this Rule by adding at the end the words "de eodem genere", or, "in the same respect".
Rule 09.
Rule 11. When the rights of the parties are obscure the defendant should be favored rather than the accuser. Cum sunt partium iura obscura reo fovendum est potius quam actori. Office.
Rule 12.
Rule 13. Ignorance of fact, but not of law, excuses. Ignorantia facti non iurii excusat.
Rule 13 is cited for two Pio-Benedictine provisions:
• 1917 CIC 0016 § 1. Ignorance of an invalidating or incapacitating law does not excuse, unless the law expressly says otherwise.
• 1917 CIC 2229 § 3 n. 1. Ignorance of the law, or even of only the penalty if it was crass or supine, does not excuse an automatic penalty: if it was not crass or supine, it excuses from medicinal but not from vindicative automatic penalties;
Sources and Discussion:
Rule 13 is connected with the very nature of law. When law seeks to determine and direct the acts of subjects, it can be followed only if it is known; notice of law, therefore, belongs in some way to its existence; unknown law does not work. A legislator issuing a law, then, although he does not say so, implicitly directs that not only should the law which he issues be observed but also that it be known by those to whom it pertains, for otherwise it would not be able to be observed. This duty to know the laws varies in accord with various subject matters and various persons. It is especially important to know the laws by which juridic acts are regulated (such the law of purchase and sale, contracts, and so on), or the law on solemnities because if solemnities are not observed one acts invalidly; one must not be ignorant of laws that refer to a duty or an office that is performed, such as judge, magistrate, head of a family, and so on. 068 Even penal laws should be known, but ignorance of them will be overlooked (excusari) because a good man, even if he does not know there are penalties, will not depart from the good.
Roman Law is rich in this area: No one can be ignorant of things done publicly. Quae publice fiunt, nulli licet ignorare. [De Mauri (1905) 47.] Ignorance of fact excuses, ignorance of law does not excuse. Ignorantia facti excusat, ignorantia iuris non excusat. {Bartoccetti’s citation here to Digest XXII t. 6, n. 9 is on point but the actual text he asserts is not found there; it is however found in De Mauri (1905) 47.} Error (ignorance) of law harms, of fact, it does not harm. Error (ignorantia) juris nocent, facti non nocet. {Again, Bartoccetti’s citation to Digest XXII t. 6 is on point but the actual text he asserts is not found there; it is however found in De Mauri (1905) 45. The Digest passage, specifically at n. 9, to which both Bartoccetti and De Mauri point, reads “Regula est iuris quidem ignorantiam cuique nocere, facti vero ignorantiam non nocere.”}
Ignorance of law and ignorance of fact are equivalent in a concrete case but they differ between themselves on their own; for ignorance is a habitual lack of knowledge while error is only actual. Ignorance (and sometimes even error) of law can be of different degrees of culpability in so far as they might involve small, notable, or the highest negligence. Ignorance can be crass or supine, namely that which in a sensate man cannot be allowed and which indeed is practically equivalent. But affected ignorance, or willed, is considered to be malicious.
Regarding the facts, namely, the circumstances under which the norms of the law can and must be applied, ignorance more easily is excused, although even this can harm {one claiming ignorance}. There is available in a given case an “action or exception of error” {No source for “actio vel exceptio erroris” was found. = } especially in contracts because “the will of one in error is null”. [Digest XXXIX, t. 3, n. 20 (Pomponius)]. Nulla enim voluntas errantis est.
The doctors explain that ignorance of law is not to be tolerated because laws “are finite” in number and thus limited, and therefore, are such that one is able to learn them with ordinary diligence, as the Romans wrote. “It is permitted to no one to be ignorant of {or to pretend ignorance of} the constitutions of the princes”. [Code I, t. 18, n. 12 (Valentinian & Theodosius)]. Constitutiones principum nec ignorare quemquam nec 069 dissimulare permittimus. Likewise, “It is not permitted to any of the priests not to know the canons”. [Gratian, Concordantia, pars I, Dist. 38, c. 4 (Celestinus) seu Friedberg I: 141.] Nemini {sacerdotum} liceat canones ignorare. To the contrary, “Facts are nearly infinite and are wont to deceive even the most prudent.” {No source for “Facta sunt prope infinita et plerumque solent prudentissimos fallere” was found. =}. This applies especially for an heir concerning the facts of his author^ for “ignorance about a fact about another is tolerable error”. Digest XXXXI, t. 10, n. 5 (Neratius). Quia in alieni facti ignorantia tolerabilis error est.
Nevertheless even ignorance of fact is excused, that is, it does not harm if it is not the highest {degree} as [Digest XXII, t. 6, n. 9 § 2 (Paul)] has it: So ignorance finally does not harm {someone} if the highest negligence cannot be objected against him, for how can everyone in the city know something of which he alone is ignorant? Ignorantia ita demum cuique non nocet, si non ei summa neglegentia obiciatur: quid enim si omnes in civitate sciant, quod ille solus ignorat?
Rural folks can find a particular excuse as among the Romans they were reckoned like soldiers, about whom Emperor Antonius speaks thus, that, Not only because of ignorance in law or simplicity in regard to trials are [soldiers] excused from [attaining to] the heights of law, but especially because of the lack of time under which they labor in camps and on expeditions.” {The source for “Non solum propter ignorantiam juris sive incalliditatem fori excusantur a servandis apicibus juris, sed praecipue propter penuriam temporis qua laborant in castis et in expeditionibus” was not verified = cite}. This is likewise the case for persons who live “in places in which there are not [sic: rarely] found literate persons”, [Code VI, t. 23, n. 31 § 2 (Justinian)]. Illis in locis in quibus raro inveniuntur homines litterati. In these more favorable cases can be applied sometimes canonical Rule 47 “Ignorance is presumed when knowledge is not proven.”
Rule 13, whose embrace is quite wide, did not find favor with the annotator of the sources of the Code (His Eminence Cdl. Seredi) who mentions it in the footnote of only two canons, namely, Canon 16 § 1 in which it is noted that ignorance accomplishes nothing in regard to invalidating or 070 incapacitating laws unless the contrary is expressed. A law concerning solemnities of acts is always in force, unless the law itself has been dropped, but civil laws envision the rehabilitation (sanationem) {of an act} after a number of years of peaceful possession as, for example, article 131 of the Italian Civil Code puts it: “Acceptance of the status of marriage, upon the celebration of marriage, heals any defect of the form of marriage.” In contrast the canons of the Code allow no sanation even if the nullity of the marriage arises from a defect unknown to the parties (say, because the priest assisting at the marriage did not obtain the required delegation from the pastor) as set out in Canon 1137 “Marriage null because of a defect of form, in order to become valid, must be contracted anew with legitimate form.”
This seems rather harsh theoretically: But the Tridentine Fathers had to strive sharply to require even one celebration {for the validity of marriage} and they discussed so long whether that was appropriate and even possible, that it seemed they did not think about the necessity for validity another celebration if the first labored under some defect, especially after the peaceful possession {of marriage} was accomplished over several years (which nevertheless is established by the Code for any impediment by defect of consent, and so on, in Canon 1133-1137, as often as it is public, namely, it is able to be proven in the external forum).
Comment: Bartoccetti touches on a complex area of marriage law under both the Pio-Benedictine and the Johanno-Pauline Codes. =
There is also available at the request of the parties or of one party the extraordinary remedy of healing at the root (sanatio in radice) in Canon 1138-1141.
Comment: Radical sanation can be granted even if both parties are unaware of it. See 1917 CIC 1138 § 3 and 1983 CIC 1164.
In the possession of a benefice, however, legitimate prescription is recognized, even if the benefice is had by an invalid title, provided the beneficiary held the possession for three years in good 071 faith and provided there was no simony (Canon 1446). But if this {approach} were to be applied to marriage it would certainly favor the secure (soliditati) state of marriage and strengthen the certitude of such an important status.
Rule 13 could surely have found a wide space in canons where error and ignorance are expressly treated, which are, besides Canon 16: Canon 104 that explains the invalidating effect of error in contracts; Canon 185, that establishes an affected resignation is invalid; Canon 1082 that treats of ignorance of the nature of marriage which not presumed in post-pubescents; Canon 1083 that treats of error of person and of one’s free state (libertatis) in marriage; and finally in Cano 1084 that treats of error of law concerning marriage, even if it gave cause for the contract, which does not vitiate marriage. Concerning error in marriage the Code rightly is more severe because obvious dangers otherwise would arise.
But the most significant word concerning ignorance is when there is treated in penal law the imputability of the accused in assigning a penalty, and so on. The annotator saw only Canon 2229 but, just as well, and by an even greater argument, he could have noted Canon 2199 that treats of the culpability of one who violated a law in ignorance, which nevertheless extenuates imputability. Canon 2202 is fundamental concerning the assessment of ignorance in respect of inflicting penalty; ignorance, even if culpable, reduces of penalty, and this applies in smaller degree even ignorance of an established penalty; finally in Canon 2218 that 072 gives norms concerning the measure of a penalty, there is considered among the elements to be kept before the eyes of the judge the “knowledge” of the accused person.
Nor would recalling Rule 13 in regard to Canon 1054 have been incongruous, for that canon illustrates the nature, indeed the singularity, of impediments of minor grade, in which a dispensation has force even if obtained by alleging a false motive and also in Canon 1052 by which a dispensation has force even if it was granted for a mistaken grade (provided the mistaken grade was greater than the actual grade) and even if “there was withheld an impediment of the same kind in an equal or inferior degree”.
Rule 14. When one succeeds to the rights of another he is thought to have a just reason for ignorance. Cum quis in ius alterius succedit iustam ignorantiae causam habere censetur. Office.
Rule 15.
Rule 16.
Rule 17. A benefice granted by law should not be turned over to someone else. Indultum a iure beneficium non est alicui auferendum. Office.
Rule 18.
Rule 19. He is not without fault who immerses himself in things not pertaining to himself. Non est sine culpa qui rei quae ad se non pertinet se immiscet. Office.
Rule 20. No one is prohibited from using several defenses. Nullus pluribus uti defensionibus prohibetur. Office.
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Rule 21. What pleased once cannot displease later. Quod semel placuit amplius displicere non potest.
Rule 21 is cited for three Pio-Benedictine provisions:
• 1917 CIC 0181 § 4. The electors cannot revoke the presentation postulated to the Superior, unless the Superior consents.
• 1917 CIC 1729 § 4. Once the formula of doubts or the articles is set, it cannot be changed except by a new decree and for grave cause at the request of a party or a promoter of justice or the defender of bond and having heard both [parties] or the other party and having weighed their reasons.
• 1917 CIC 1731 n. 1. It is hardly licit that the petitioner change the libellus unless, with the respondent consenting, the judge thinks the change ought to be allowed for a just cause, always with due regard for the compensation of damages to and expenses for the respondent if these are owed.
Sources:
• [Digest L, t. 17, n. 75 (Papinian)]. No one can change his thinking to the detriment of another. Nemo potest mutare consilium suum in alterius injuriam. (Black's Law Dictionary (1979) is identical.)
• [Code IV], t. 10, n. 5 (Diocletian and Maximian). Just as, at the beginning, each one is free to make or to not make a contract, so once an obligation is undertaken, one cannot renounce it with the other not consenting. Sicut initio libera potestas unicuique est habendi vel non habendi contractus, ita renuntiare semel constituae obligationi adversario non consentiente, nemo potest.
• Digest XIII, t. 5, n. 1 (Ulpian). He who establishes something by consent should keep to it for it is a grave thing to fail in faithfulness. Qui constituta ex consensu facta custodit, quoniam grave est fidem fallere.
• Digest XIII, t. 5, n. 1 (Ulpian). It is a grave thing to fail in fidelity. Grave est fidem fallere.
Canonical Rule 33 states: No one can change his thinking to the detriment of another.
Discussion:
Rule 21 is quite generic and must be applied with caution to avoid irrational consequences as it is quite well known that “the will of man changes up to the very end of life” Digest XXIV, t. 1, n. 32 § 3 (Ulpian).
Comment: See also Bartoccetti’s discussion of canonical Rule 08.
The rule is applied to licit agreements from which might arise rights in a third party, whereupon the following rule comes into play “What is so congruous to human fidelity than their observing what they have decided among themselves?” Digest II, t. 14, n. 1 (Ulpian). Quid enim tam congruum fidei humanae, quam ea quae inter eos placuerunt servare? Rule 21 falters, however, in cases wherein the contractants freely and together draw back from the agreement, though this something that cannot occur in marriage, religious profession, Orders, or in solemn vows. The rational here is quite open: These agreements are in some sense free but in another sense coerced. They are free in that persons can freely decide to contract marriage, to take up holy Orders, pronounce solemn vows, such they can do these things or decline; but one who does it is bound by law to that institute, marriage, Order, and so on, with the law being that the obligation taken up can be dissolved only by death, nor can one withdraw from even if it he wishes thus.
In this regard Rule 21 could have been cited for Canon 1118 “A ratified and consummated valid marriage can be dissolved by no human power and for no cause, outside of death” by which canon the indissolubility of marriage and the rejection of divorce is clearly set forth; it could also have been invoked for Canons 1069 on the impediment of prior bond and 1073 on the impediment of solemn vows.
In contrast, acts that are allowed to be changed, such as testamentary wills, contracts =, and interlocutory rulings that can be changed by a judge prior to becoming definitive under Canon 1841, these sorts of contracts are not subject to the rules against modification.
The filing (libellus) cannot be changed by the petitioner without the consent of the respondent nor can the’ formulation of the doubt’ without grave cause. Rule 21 could have found a place with regard to Canon 1438 by which it is established that secular benefices can be conferred for the life of the beneficiary and therefore, the beneficiary cannot be removed if he is unwilling.
This notion, although less congruent with the modern conditions of ecclesiastical and civil society in which offices are understood as conferred only for a time (until such an advanced age might not oblige one beneficed to resignation^) and likewise somewhat at odds with the idea of changes for the better and more successful pursuit of responsibilities, and tempered somewhat by the norms for administrative removal of pastors (see Maxima cura 20 [Aug] 1910), but it is hoped that this obsolete discipline (that, together with the beneficiary institute surviving only in a few nations, such as Italy, Spain, and so on) may be modified little by little and in parishes, just as in other offices (say, in schools, where one is transferred from duties in lower school to a higher, or from a school in a small rural district to a city school, and so on) it will be done thus, in the senses that the usefulness to the people is considered, and only secondarily that of the beneficiary.
Rule 22. One must not be burdened because of the hatred of another. Non debet aliquis alterius odio praegravari. Office.
Rule 23.
Rule 24. What one does by mandate of the judge, he is not seen to do from malice, because he must obey of necessity. Quod quis mandato facit iudicis, dolo facere non videtur, cum habeat parere necesse.
Rule 24 is not cited for any Pio-Benedictine provision.
Sources:
Rule 24 has its sources in some parallel rules of the civil law.
• Digest L, t. 17, n. 167 § 1 (Paul). One who does something at the order of a judge is not seen as acting by a malicious evil, for it appears he has necessity. Qui iussu iudicis aliquid facit, non videtur dolo malo facere, qui parere necesse habet.
• Digest L, t. 17, n. 199 (Javolenus). He does not lack malice who does not obey the mandate of a magistrate. Non potest dolo carere, qui imperio magistratus non paruit.
Discussion:
The sense of Rule 24 is rather wide because it does not seem to consider only judges properly so-called but also superiors, parents, magistrates, and so on.
110 Nevertheless judges must remain within the limits of their office because according to the rule the civil law “What is done by a judge that does not pertain to his office is not valid.” Factum a iudice, quod ad officium eius non pertinet, ratum non est. The same thing happens if an incompetent judge orders something. Digest L, t. 17, n. 170 (Paul). And “One pronouncing the law outside of his territory may be disobeyed with impunity, likewise if he wishes to apply the law beyond his jurisdiction” Extra territorium jusdicendi non paretur impune, idem est si supra jurisdictionem suam velit jus dicere. Digest II, t. 1, n. 20 (Paul). See also canonical Rules 26 and 64.
Although it is never cited among the sources of the Pio-Benedictine Code it is not difficult to identify several canons that are consistent with Rule 24. They are those that free from responsibility the executor of the directives of superiors according to this norm of Julian: “No judge therefore who takes cognizance of a judgement should review the ruling of the praetor, for otherwise, these sorts of praetorial edits and decrees would be pointless.” Non utique iudex, qui de iudicato cognoscit, debet de praetoris sententia cognoscere: alioquin lusoria erunt huiusmodi edicta et decreta praetorum. Digest V, t. 1, n. [75] (Julian).
Rule 24 could have found an apt place in the footnote of Canon 2205 § 2 in which, among the causes diminishing the imputability of a delict, “necessity” is recalled which always exists when the directive of a superior is performed with one exception noted in § 3 of Canon 2205, that is, when “the act [is] intrinsically evil or verged on contempt for the faith or ecclesiastical authority or harm to souls”. For then, ‘God is more to be obeyed than men’ [Acts V: 29].
Rule 24 could have been recalled as well in Canon 536 §§ 1 and 2 on religious non-responsibility in regard to contracts that required the approval of a superior.
111 Rule 25. One’s own delay is harmful. Mora sua cuilibet nociva est.
Rule 25 is cited for eleven Pio-Benedictine provisions:
• 1917 CIC 0177 § 1. The elected one, if the election requires confirmation, must within at [most] eight days from the date of the election seek confirmation personally or through another from the competent Superior; otherwise he is deprived of all rights, unless he can prove that he was legitimately detained by a just impediment from petitioning confirmation.
• 1917 CIC 0178. If the election is not conducted within the prescribed period, or if the college is deprived of the right of electing by penalty, free provision of the office devolves on the Superior who would have been the one to confirm the election, or to whomever the right of provision belongs successively.
• 1917 CIC 0181 § 2. If within the prescribed time the postulation is not sent, by that fact it falls into nullity and the electors are deprived of the right of electing or postulating for that time, unless they prove they were impeded from sending the postulation by a just obstacle.
• 1917 CIC 1122 § 1. The inquiries are usually made using at least a summary and extrajudicial form under the authority of the Ordinary of the converted spouse, from which Ordinary there should be granted to the [non-converted] spouse, if he requests, time to make a decision, but warning that, if the time passes without use, the response will be presumed negative.
• 1917 CIC 1458 § 1. If within the prescribed time the presentation is not made, the church or benefice may be freely conferred on that occasion.
• 1917 CIC [1469] § 3. If the patron within the time given by the Ordinary, 112 under pain of cessation of patronage, builds the church anew or restores it or supplements the income, the right of patronage revives; otherwise, by the law, and without any declaration, it ceases.
• 1917 CIC 1736. If no procedural act, even though no impediment obstructs, has been placed in the tribunal of first instance for two years or in the appellate grade for one year, the instance is terminated and in the second case the sentence impugned by appeal becomes an adjudicated matter.
• 1917 CIC 1844 § 1. At the request of a party or promoter of justice or defender of the bond if they are involved in the trial, a judge can declare the contumacy of a respondent and, [contumacy] being declared, can proceed, those things being observed that ought to be observed, even to definitive sentence and its execution.
• 1917 CIC 1849. If, on the day and hour at which a respondent according to the prescription of the citation is to first present himself in the presence of the judge, the petitioner is not present and offers no or an insufficient excuse for his absence, the judge shall cite him again at the request of the convened respondent; and if the petitioner does not obey the new citation or later starts the trial or, it having started, fails to pursue it, at the request of the convened respondent or the promoter of justice or the defender of the bond, he shall be declared contumacious by the judge observing the same rules that were given above regarding contumacy of the respondent.
• 1917 CIC 1850 § 1. A contumacious petitioner, declared such by the judge, loses his right to pursue his action in that instance.
• 1917 CIC 1886. If the deadline for appeal has passed without use, 113 whether in the presence of the judge from whom or in the presence of the judge to whom, the appeal is considered deserted.
Sources and Discussion:
• Digest L, t. 17, n. 173 § 2 (Paul). One’s own delay harms one. Unicuique sua mora nocet.
In Roman Law the word “delay” (mora) is understood especially as an unjust dallying in repaying a debt, and so on. {See, e.g., Black's Law Dictionary (1979) s.v. Mora, at 909.} Delay is an unjust dallying in fulfilling an obligation. Mora est iniusta dilatio in adimplenda obligatione. {De Mauri (1905) 85. The citation offered here by Bartoccetti eventually sends one to Digest XII, t. 1, n. 40 (Paul) where the legal effects of delay are briefly mentioned.} In canonical Rule 25 it seems that a more ample concept of delay is understood such that it includes even negligence in the execution of things that must be done for one’s own convenience, while in the Roman rule there was considered only the convenience of another, or at least principally so, because they understood negligence thus: Digest XLII, t. 8, n. 24 (Scaevola). The civil law is written for the vigilant. Ius civile vigilantibus scriptum est. And, Digest IV, t. 6, n. 16 (Paul). Aid is not for the negligent but for those impeded by the necessity of things. Non enim neglegentibus subvenitur, sed necessitate rerum impeditis.
Rule 25 found great, perhaps even too much, favor among those assembling the sources for the 1917 Code, as is apparent from the references recorded above. It could certainly have been cited whenever a deadline is imposed in the Code, such as often happens especially in procedural law. Thus in Canon 76 which sets out the loss of a privilege by its nonuse. Likewise in Canon 1470 § 1 n. 3, that determines the cessation of a right of patronage by prescription. Or again in Canons 1701 and 1705 § 1 that treat the prescription of a contentious action.
In law, the matter of time is of the greatest import especially in procedural issues, as, for example, the ten days allowed for appeal from which provision 114 marriage cases are removed (see *Provida 217).
Comment: The general ten-day period for appeal of judicial cases was set out in 1917 CIC 1881. =
But in regard to this faculty, one established especially in favor of the bond, it is necessary that its use be moderated as much as possible and then only in exceptional cases lest the right order of judgments be subverted and even the very bond suffer unjust harm.
Rule 26. Those things done by a judge, if they do not pertain to his office, do not exist. Ea quae fiunt a iudice si ad eius non spectant officium non subsistent. Office.
Rule 27.
Rule 28. Those things that go beyond common law are never brought into effect. Quae a iure communi exorbitant nequaquam ad consequentiam sunt tradenda.
Rule 28 is cited for two Pio-Benedictine provisions:
• 1917 CIC 0067. A privilege is to be evaluated according to its own tenor, and it is not licit to extend nor restrict it.
• 1917 CIC 0085. Not only is dispensation subject to strict interpretation in accord with the norm of Canon 50, but so too is the faculty of dispensing that is granted for a certain case.
Sources:
• Digest L, t. 17, n. 141 (Paul). What was received contrary to the rationale of law must not be produced for following things. Quod contra rationem iuris receptum est, non est producendum ad consequentias.
• [Dantoine, Règles XXVIII, ¶ Ce fut par]. The privileges of individuals cannot make a common law nor be extended to others. Priuilegia singulorum non possunt legem facere commune nec ideo in consequentiam trahi.
Comment: St. Jerome endorsed this limiting principle when discussing the selection of Matthias by lot “because the privileges of individuals cannot make common law.” See Jerome, Commentariorum in Jonam Liber Cap I, 1126, “cum priuilegia singulorum non possint facere legem communem”. But see Proverbs XVI: 23. Gratian treats the casting of lots at Decretum II, c. 25, q. 1, c. 16, seu Friedberg I: 1012, and at Decretum II, c. 26, q. 1, passim, seu Friedberg I: 1020-1024.
121 See also canonical Rules 15, 30, 49, 74, and 78.
Discussion:
The rationale behind Rule 28 is straightforward. It is irksome when something ‘reaches well outside common law’, namely, when it strays from the general rule, for, in the first place, things such as privileges, particular dispositions, dispensations, exemptions, and so on, are irksome.
Comment: Bartoccetti is not making a circular argument here although his point might have been more clearly put. The institutions Bartoccetti lists are sometimes cast as ‘wounds on the law’, here, as matters that make the law appear one way for some persons and another way for others, introducing thus a dis-uniformity in the law that should bind the entire community. His point is simply that any provisions that fall well outside the common approach suitable to law introduce similar dis-unities.
In such cases (which in canon law are much more frequent than they are in civil law—indeed, some canonical laws seem to exist only to be dispensed from even without just cause, such as impediments of minor grade to marriage in Canon 1054, a situation quite peculiar in law) a strict interpretation must be applied lest these individual provisions be turned into general examples (see [Digest L, t. 17, n. 162 (Paul)]. Things allowed because of necessity must not be applied in arguments. Quae propter necessitatem recepta sunt, non debent in argumentum trahi.) The only exception here would be if the matter does not deal with privileges properly so-called but with particular norms that control some class or category of persons, such as laws favoring clerics or religious, or beneficial entities, and so on, which states and institutes are constituted not for the good of private persons, at least not primarily, but for the good of the whole community and therefore are subjected to favorable, not strict, interpretations and applications.
Rule 28 is cited only for Canon 67 on privileges and for Canon 85 on dispensations and the faculty of dispensing. But it would have been easy to extend citations of it to several other canons that refer to privileges, exemptions, dispensations, and even penalties, in that such matters must always be strictly interpreted and applied.
As has been noted {=}, the frequency (and sometimes abuse) of dispensations from the law of the Church in force everywhere is sometimes taken by civilians as arguments for denigrating the juridic character 122 of ecclesiastical laws in that, in civil law, law cannot be dispensed but only abolished either in whole or in part.
Comment: Bartoccetti makes a very good point, here, namely, the dangers that too-frequent dispensations from canon law occasion both for the internal discipline of the Church and to the esteem with which her legal system should be regard by civil authorities. It might be noted, however, that in the common law system, most courts are generally understood to be, as the classic phrase has it, “sitting in law and equity”, that is, as being charged with applying the law as written for all (sitting in law) but so as to achieve a fair result for the specific parties (sitting in equity). In other words, common law courts might rather often be, in effect, dispensing from the strict words of the law in specific cases, while not perceiving themselves as ‘dispensing’ from law. Still, Bartoccetti’s main point here, that canon law has too many norms in place that bear so little relevance to pastoral practice that they are routinely, nay near universally, dispensed from (e.g., from the impediment of disparity of cult in 1983 CIC 1086 § 1), bears frank reflection.
The denial of the juridic character of ecclesiastical law cannot, of course, be accepted, as such is manifestly false and subversive, but the peculiar nature of ecclesiastical laws must be acknowledged when they are compared to civil laws. Now this difference proceeds from several sources. First, ecclesiastical law has force only for those who belong to the Church not only by having taken baptism but also by a profession of faith and a voluntary subjection to ecclesiastical power. For the Church is a voluntary society.
Comment: The ‘voluntary’ nature of the Church is crucial for understanding, in part, the sociological parameters within which canon law operates. Prescinding from the dogmatic fact that, Semel baptizatus semper baptizatus, the enforcement mechanisms available to the Church in support of her laws often differ markedly from those available to the State for the enforcement of its norms. Consider, if a Catholic fails to perform so fundamental a religious duty as that of attending Mass on Sunday, no armed ecclesiastical officials will call at his door and demand an explanation, but a citizen who fails to perform the fundamental duty of paying some amount in taxes knows that a swift and certain enforcement of tax laws against him looms. Thus, the very limited enforcement options available to the Church (limited, not non-existent!) for enforcing her discipline demands, to some extent, a mechanism for relaxing that discipline in certain cases lest contempt for law itself be bred within the ecclesial community. That discipline is known as dispensation; the question is not whether dispensation has a place in canon law, the question is how wide is that place. Bartoccetti is about to development this point briefly.
In contrast, all citizens, whether they wish it or no, are subjected to the civil law unless they migrate from the State that established the laws and indeed they lose their nationality. Further, the observance of civil law is urged by force by civil servants and by the infliction of corporal punishment even to the point of supreme punishment. In contrast, ecclesiastical laws are not enforced by coercive corporal measures. Likewise, the purpose of civil law is the supernatural welfare of souls, whether directly or indirectly achieved and facilitated, and therefore is quite indulgent toward the infirmities of the many. The civil law, however, looks only to narrow scope within its limited boundaries while ecclesiastical law obliges the faithful living throughout the world under the most diverse conditions of life. In short, it is reasonable that ecclesiastical law be more easily dispensed according to the circumstances of individual persons.
Another reason why ecclesiastical law is more easily dispensed is the nature of Church governance as an absolute monarchy 123 by a Supreme Pontiff who can thus establish laws, relax them, and freely abolish them: in contrast civil laws cannot be changed unless there is first discussion and voting in a legislative body and other specific procedures are observed.
Nevertheless it is true what the Holy Father Pope Pius XI, of happy memory, said, and not just once, to those seeking dispensations: “Laws exist to be observed and not so they can be dispensed” (Leges existunt ut serventur non ut dispensentur).
Comment: While anecdotal, and thus not verifiable, Pius XI’s observation is consistent with one made by Pope St. John Paul II in his apostolic constitution, Sacrae disciplinae leges (1983): “[B]y their very nature canonical laws are meant to be observed”.
It is thus preferable that laws be reduced and those that are in fact not applied be removed and those that remain be enforced. This is especially the case if the dispensation can injure third parties (as sometimes happens, say, if a Rotal judge were dispensed from the activity of his service immediately upon attaining 75 years of age, for, if he were dispensed, others would be impeded, whether the judge who follows him in order and other inferiors lest they go up one step) or if, frequently applied, as they say, he serves the public good at a key point (nervo disciplinae).
Comment: As offered, this analogy limps, for retirement from office upon reaching a certain age is not a “dispensation” from its duties. The question of whether a tendered resignation should be accepted, in whole or in part, is not a question of dispensation from a useless law, but of the discipline attached to any ecclesiastical office.
It would seem desirable that marriage impediments of minor grade (that are in reality diriment) be transformed into [diriment] impediments or, if they are otherwise, into recommendations and advice, for indeed, of what force is a law from whose observance practically anyone so seeking can free himself by alleging a false rationale?
Comment: Bartoccetti strays from his good point here. The problem he seeks to solve is not false representations in petitions for dispensations (such matters are addressed in, say, 1983 CIC 63, olim 1917 CIC 40 and 42) but canon laws of such minimal import that virtually any request for dispensation from them is granted with nary a thought. As noted above, Bartoccetti would have done better to distinguish between requests for dispensations that are susceptible to dishonesty vs. requests for dispensations from laws of little moment. There might be overlap between these two scenarios but they remain distinguishable.
What would military conscription be if anyone could avoid it by alleging some infirmity which does not affect him? It would no longer by a matter of obligatory conscription but rather of voluntary military service.
That is the case with an impediment in the third degree of consanguinity or the second degree of affinity and 124 even the impediment of crime of the first and second kind (Canon 1075 n. 1) when the spouses committed adultery with a promise of marriage (fide data) or attempted it by a merely civil act – to which attempt is attached infamy of law by Canon 2356.
Comment: The first two Pio-Benedictine impediments to which Bartoccetti refers (see 1917 CIC 1076 on consanguinity and 1917 CIC 1077 on affinity) were not carried into the Johanno-Pauline Code (see 1983 CIC 1091 and 1092 respectively). Likewise, the first and second kinds of crimen (see 1917 CIC 1075) as impediments to marriage do not appear in the 1983 Code (see 1983 CIC 1090) and the infamy attached to attempts at civil marriage by Catholics was not carried into the new Code, either. The reasons behind dropping these impediments and penalties are several, however, and so they are not, in my view, helpfully offered as examples of laws that should be eliminated lest they occasion a surfeit of dispensations.
It suffices that they request a dispensation alleging falsely, say, the advanced age of the woman, removal of scandal, when the age of the woman is less than 24 and there is no scandal present, and so on.
Comment: Again, the susceptibly of dispensation petitions to subterfuge raises concerns distinguishable from those occasioned by requiring dispensation from laws of little moment. But it surely overreaches to describe different assessments of motives for dispensations (such as removal of “scandal” or “advanced age”) as “false” simply because they do not coincide with another’s assessments of such factors.
Rule 28 could have been opportunely cited for Canon 642 that enumerates the incapacities ^ of professed religious who are permitted to return to the world. These disabilities expose the thinking of the Holy See that, while it grants dispensation from religious vows in order to prevent worse evils, desires nevertheless to punish in some way the inconstancy of the religious who did not strive to remain faithful to his vows and who put off the habit freely taken up.
It might also be noted that in Canons 232 § 2 [n. 1] and [331 § 1 n.1], for cardinals and bishops respectively, that legitimization of one’s illegitimate birth is not obtained even by a subsequent marriage, a fact that shows the desire of the Church to avoid any sort of, however minimal, blemish (albeit extrinsic) among those destined for such sublime responsibilities. In this way, legitimization, something afield of the common law, is most strictly interpreted.
It would have been opportune, nay even necessary, to have cited Rule 28 in regard to Canon 1471 that imposes a strict interpretation on norms that apply to the ‘right of patronage’ (iuspatronatus) insofar as such a right is odious and, in fact, according to 125 Canon 1450, no such right by any title can be constituted in the future.
Rule 29.
Rule 31. It is not necessary to further inform him who is already certain. Eum qui certus est certiorari ulterius non oportet. Office.
Rule 32. What is not allowed to the respondent is not allowed to the petitioner. Non licet actori quod reo licitum non exsistit.
Rule 32 is not cited for any Pio-Benedictine provision.
Sources:
• Digest L, t. 17, n. 41 (Ulpian). One must not permit to the petitioner what is not permitted to the respondent. Non debet actori licere, quod reo non permittitur.
• Digest L, t. 17, n. 125 (Gaius). Things are considered more favorable to a respondent than to a petitioner. Favorabiliores rei potius quam actores habentur.
• Code XII, 19, 12, n. 4 [Anastasius]. = In controversiis, quas in iudiciis moveri contigerit, aequalitatem litigatoribus volumus servari.
139
See also the Rules of Canon Law nn. 11, 15, and 20.
Discussion:
The reason for Rule 32 is evident. The position of the respondent is more favorable because he is the one who possess something while the petitioner wishes to change the juridic state of things, an action that perturbs the existing order, an action that is odious. Rule 32 must be understood such that a respondent has greater legal abilities (facultates) than does a petitioner.
Rule 32 is not cited in the Pio-Benedictine Code but it squares with Canon 1865 § 2 “once the concession is made to one party it is considered made to the other” and with Canon 1887 § 1 “Appeal made by the petitioner applies to the respondent and the opposite is true”, although in these canons, rather than the rights of the respondent being alluded to it tends more to the preservation of equality between the litigants. A seeming exception to Rule 32 is the fundamental procedural norm of Canon 1559 § 3 “A petitioner follows the forum of the respondent”, —something considered to favor the respondent in respect to the petitioner— “but if the respondent has several fora, the choice is granted to the petitioner”. But this option seems reasonable and can be taken by a petitioner but not by a respondent in that a respondent, being in a defensive position, do not do anything, instead the petitioner moves the battle and, if there are several castles to be defended, it is reasonably for the petitioner to decide which castle should be stormed. It can further be noted that a wife, even if she has been maliciously deserted by her husband, always keeps the legal domicile of her husband, and therefore the man, if he wishes to impugn the marriage, can direct his accusation of to the judge of his own domicile, that is, to the legal domicile —not his actual one— of his wife, an option than can serve not a little the convenience of the husband.
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Rule 33. No one can change his thinking to the detriment of another. Mutare quis consilium non potest in alterius detrimentum.
Rule 33 is cited for four Pio-Benedictine provisions:
• 1917 CIC 1314. A work promised by a non-reserved vow can be commuted into a better or equal good by the very one vowing; into something less good, only by one who has the power of dispensing according to the norm of Canon 1313.
• 1917 CIC 1319 n. 1. The obligation of a promissory oath ceases to bind: 1° If it is remitted by him for whose benefit the oath was given;
• 1917 CIC 1729 [§ 4]. Once the formula of doubts or the articles is set, it cannot be changed except by a new decree and for grave cause at the request of a party or a promoter of justice or the defender of bond and having heard both [parties] or the other party and having weighed their reasons.
• 1917 CIC 1731 n. 1. The issue having been joined: 1° It is hardly licit that the petitioner change the libellus, unless with the respondent consenting, the judge thinks the change ought to be allowed for a just cause, always with due regard for the compensation of damages to and expenses for the respondent if these are owed.
Sources:
• Digest L, t. 17, n. 75 (Papinian). No one can change his mind to the injury of another. Nemo potest mutare consilium suum in alterius iniuriam.
• [Digest L, t. 17, n. 74 (Papinian)]. An unfair condition must not be imposed on someone through another. Non debet alteri per alterum iniqua condicio inferri. {See also Black's Law Dictionary (1979): Non debet alteri per alterum iniqua condicio inferri.}
• [Digest XVII, t. 1,] n. 22 § 11 (Paul). Just as one is free to not take up a mandate, once taken up it must be completed, unless it is renounced. Sicut autem liberum est mandatum non suscipere, ita susceptum consummari oportet, nisi renuntiatum sit.
• [Dantoine, Règles, Preface, ¶ Cependant]. Contracts are matters of will at first, but after the fact they pass into necessity. Contractus ab initio sunt voluntatis, sed ex postfacto transeunt in necessitate.
Discussion:
The rationale for Rule 32 is such that the reflections already set out for canonical Rule 21 could be applied here. Rule 32 is cited by the Code with some generosity and only a relative exactitude for truly Canon 181 hardly squares with Rule 33; the reason why postulation cannot be changed electors is not, at least not primarily, that the interest of the one postulated is at issue for, with the permission of the superior, such a change can take place (which would not be the case if the right of the aforesaid postulated one were certain or protected), but rather is due to the nature of elections that, once completed, must remain as they are, lest one [have voted] in vain. Even less cogent is the citation [to Rule 33 offered] in Canon 1314 because there the issue is vows, namely, promises made to God, and can God ever suffer loss? Obviously this citation could be offered only analogically by the eminent Cdl Seredi.
Comment: Perhaps as an aside, this seems a good place to question (as in, question, not challenge) Bartoccetti’s occasional implications that Seredi, and not Cdl Gasparri, was responsible for the decision to include any matters, including the canonical Rules of Law, as sources for, and thus as footnotes in, the 1917 Code. While Seredi, subsequent to the death of Gasparri in 1934, was responsible for the last few volumes of the Fontes Codicis (Stickler 394), including the index volume to which one would turn to learn where various canonical rules had been cited in the 1917 Code, all of those volumes are basically listings and/or compilations of canonical sources already listed in the footnotes to the Code. Bartoccetti speaks, however, as if the decision to reckon this rule or that as a source for a canon in the Code, and thus to include it in the footnotes thereof, were Seredi’s and not Gasparri’s. But, given that these footnotes were completed before the publication of the 1917 Code (in contrast to the much delayed publication of the footnotes for the 1983 Code) and in light of Seredi’s delayed arrival among the many who lent unspecified assistance with the codification project (see Stickler 378), some support for Bartoccetti’s claim that Seredi, and not primarily and perhaps exclusively Gasparri, made the decisions regarding the inclusion of canonical rules in the footnotes of the 1917 Code would be helpful toward understanding the history of the codification process.
The other citations obviously square better but they could be easily multiplied especially in procedural norms, such as in Canon 1664 by which is allowed the removal of advocates or procurators by one who appointed them cautioning, however, lest harm be suffered by those removed in “regard to the obligation of paying the fees that are owed to them”. It is set out this way in [Canon 1740 and] Canon 1741 whereby a party is permitted to renounce the litigation or certain acts of the case, although this renunciation needs acceptance by the other party for its effectiveness, and the renouncing party “is obliged to cover the expenses of the action that he has renounced.
Rule 33 can also be understood as a condemnation of divorce 142 at least in a case where it is not consensual for it is never licit for a man to leave his wife and work on her a great damage; even less so if children are harmed thereby; and same applies to a wife leaving an innocent husband.
An exception to Rule 33 exists in Canon 1119 that establishes “A non-consummated marriage between the baptized or [a marriage] between a baptized party and a non-baptized party can be dissolved by law upon solemn religious profession, or by dispensation granted by the Apostolic See for a just cause if both parties or [just] one ask for it, even if the other is unwilling.” But this exception appears larger than it really is for if the other party, say the wife, were reasonably unwilling [to see the marriage dissolved], (say, because she, by no fault of her own, would be found deprived of the necessities to sustain her life after the grant of such a dissolution (dispensationis) or would suffer unwarranted harm to her honor then the dissolution (dispensatio), even though requested by the husband, could not be granted because there would be lacking just cause for granting it.
Comment: Two points on proper terminology. 1. Canonical usage in this area, which Bartoccetti accepted in its then-current state, by which what is actually the dissolution of marriage was dubbed a “dispensation” from it, was deficient in the early days of the development of this institute. One must always identify things for what they are. Now, if one is “dispensed” from something, that something still exists, it is simply not being enforced at present. But if something is “dissolved”, it no longer exists. Here, upon granting the petition in such a case as this, the marriage would no longer exist, thus, it would have been dissolved, not dispensed from. The Johanno-Pauline Code in treating of these matters (see 1983 CIC 1141-1150) is more accurate in this respect. 2. There might well be “just cause” for granting the husband’s request for dissolution (for “just cause” is a very low bar to satisfy), but there might not be, say, sufficient cause for granting it, given the suffering that would fall on the wife in its wake. Because dissolutions are always a matters of favor, ecclesiastical authority need express no reason for granting or refusing a request and it is better, I suggest, simply to issue the response without providing rationales, rather than risk mis-characterizing a refusal to grant a dissolution as arising from the alleged lack of “just cause” when it was obvious to all that there was just cause for making a petition but insufficient cause to grant it.
The Supreme Pontiff, by using his 'ministerial power', as they say, never wants to violate the rights or the legitimate interest of the faithful; he uses his extraordinary power to build not to destroy.
Rule 34. Generalities are diminished by the specific. Generi per speciem derogatur. Office.
Rule 35.
Rule 36. One who maliciously ceases to possess is considered to be a possessor. Pro possessore habetur qui dolo desiit possidere.
Rule 36 is not cited for any Pio-Benedictine provision.
Sources:
• Digest L, t. 17, n. 131 (Paulus). One who fraudulently ceases to possess has judgment rendered against him as the possessor, because his fraud renders him liable as possessor. Qui dolo desierit possidere, pro possidente damnatur, quia pro possessione dolus est.
• Digest L, t. 17, n. 150 (Ulpian). The legal position of him who has committed fraud in order to obtain possession of, or to hold property, and that of him who has committed it to avoid having possession of or holding property, is necessarily the same. Parem esse condicionem oportet eius, qui quid possideat vel habeat, atque eius, cuius dolo malo factum sit, quo minus possideret vel haberet.
• Digest L, t. 17, n. 157 (Ulpian). One who commits a fraud for the purpose of relinquishing possession is considered to still retain possession. Semper qui dolo fecit, quo minus haberet, pro eo habendus est, ac si haberet.
• Digest IX, t. 4, n. 12 (Paul). If a possessor in good faith dismisses his slave, whom he possessed in good faith, lest he be brought into liability on [the slave’s] account, is still liable under such an action as is given against those who have a slave in their possession or who do evil by which they might not have one, because they are still seen to possess [the slave]. Si bona fide possessor eum servum, quem bona fide possidebat, dimiserit, ne agi cum eo ex noxali causa possit, obligari eum actione, quae datur adversus eos, qui servum in potestate habeant aut dolo fecerint, quo minus haberent, quia per hoc adhuc possidere videntur.
Discussion:
It is evident that this norm pertains almost exclusively to the civil sphere and can scarcely be cited in the Code of Canon Law except perhaps in Book IV, title 5, chap 1, Canons 1672-1675 on sequestration of a thing and incapacity for the exercise of law, especially in Canon 1672 § 1.
One who wishes to lose a possession that he had up till then peacefully and freely, only because from it he must now suffer some damage, and maliciously despoils himself of the possession, is still considered as the possessor because “Rights are not favored by malice” [Dantoine, Règles, Reg. 36, ¶ Au reste (222) and Reg. 69, ¶ J’aimerois (347). Jura dolo non suffragantur.]
A sample case might be if the dog of Thomas bites Charles and Charles seeks payment from Thomas, but Thomas meanwhile maliciously sold the dog, he is nevertheless held to payment. In Roman law thse cases were more frequent because the application of the rule was a liability action by which the master of a slave who had caused damage was required to repair the damages inflicted by the slave because the slave was considered the mere possession of the master as if some kind of animal. If then the master maliciously sold the slave he was nevertheless still bound to payment.
The rule might be analogically applied to marriage, namely, to those cases in which, say, a man who, before the Church, married a wife but thereafter passed an unpleasant common life (even if the wife were at fault, although it is more frequently the case that the husband has indulged in some adultery or even cohabitation and now wishes to legalize his adulterous state). Then the man approaches our tribunal proposing that he be considered as not possessing the conjugal state, or if you prefer the wife does not possess it, and therefore he is not bound to preserve it, alleging that he freely simulated in the wedding excluding, say, an essential property of marriage or the good of children or the good of fidelity. He, as I said, could be likened to a man who strives to rid himself of some possession lest he be burdened by a possession that has turned out odious to him. But, as we have seen, the law does not permit him to be freed of possession but requires him to sustain all of the obligations arises therefrom. So too, canon law, if it is rightly interpreted and integrally applied, scarcely permits this man to prove the nullity of his marriage, even if this really were the case, under Canon [1971 § n.1]. From this rule, however, our forum has quite recently strayed with much inconvenience and risk.
Comment: This passage offers an interesting perspective on the nature of marriage nullity petitions by framing them as attempts by one party to rid himself or herself of a ‘possession’, namely, of one's status in the Church. The analogy seems useful, if only slightly. But it also occasions my reiteration that the Pio-Benedictine deprivation of the right to impugn a marriage if one were ‘guilty’ of the invalidity substituted for the search for the truth that should animate canonical cases an opportunity to punish people for (supposedly) entering marriage deceitfully. The elimination of this legal disability from the Johanno-Pauline Code (see 1983 CIC 1674) is a good thing. Further, Bartoccetti's lament about "our forum" straying from the principle of 1917 CIC 1971 is intriguing. At the time his work was re-published (1955) Bartoccetti was on the staff of or a consultant to no fewer than five Roman dicasteries, including the Apostolic Signatura. See Annuario Pontificio 1954. Was his comment directed to one or more of these offices, to the nearby Roman Rota, or to Roman or Church tribunals in general?
Rule 37. The useful must not be vitiated by the useless. Utile per inutile non debet vitiari. Office.
Rule 38. One must not obtain a benefit from that which one had striven to oppose. Ex eo non debet quis fructum consequi quod nisus extitit impugnare. Office.
Rule 39. When something is prohibited also prohibited are all things that follow from it. Cum quid prohibetur, prohibentur omnia quae sequuntur ex illo. Office.
Rule 40. The number two is contained in plural speech. Pluralis locutio duorum numero est contenta. Office.
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Rule 41. It must not be imputed to him with whom it does not rest if something was not done that should have been done by him. Imputari ei non debet per quem non stat si non fiat quod per eum fuerat faciendum.
Rule 41 is not cited for any Pio-Benedictine provision.
Sources:
• [In VI° I, t. 6, c. 35 (Boniface), seu Friedberg II: 965]. This period of a year … does not run against you if, detained by some just impediment, you were unable to be promoted. Annus autem huiusmodi […] tibi non currit; si promoveri justo impedimento detentus intra tempus huiusmodi nequivisti.
• Digest XIX, t. 2, n. 38 (Paul). One who rents out his efforts must receive payment for all of his time if it did not stand with him whether his works were rendered. 1. Advocates, too, if it did not stand with them whether they conducted the case, must not return the fees. Qui operas suas locavit, totius temporis mercedem accipere debet, si per eum non stetit, quo minus operas praestet. 1. Advocati quoque, si per eos non steterit, quo minus causam agant, honoraria reddere non debent.
See also canonical Rules 6, 23, 60, and 66.
Discussion:
The sense of Rule 41 is clear: one who is impeded is not in ‘delay’ because no one is bound to the impossible. Among the impediments to acting or to performing something are counted major force or accident (fortuitae), provided they preceded the delay, because ‘the debtor is bound to present (satisfaction) when his delay preceded the occurrence” …
Comment: My phrase translates Bartoccetti’s alleged quotation but the Digest passage he offers for it, while having something to do with excuses for non-payment, is not nearly as on point as his use of quote marks suggests. See Digest L, t. 17, n. 23 (Ulpian). One can, however, find a much closer presentation of Bartoccetti’s point in, e.g., Prompta Biblioteca (1847) III: 76, q.v. Depositum, Depositarius, n. 20.
… and provided such impediments as sickness, captivity, floods, and so on were not in some way owing to the negligence of the person obligated.
If, finally, the impediment were deliberately caused by him who had an interest in not performing, the impediment is considered as not existing and the debtor is regarded as not having paid, for, “Whenever it is through him, in whose interest it is that a condition not be fulfilled, that it is not fulfilled, [the condition] is thereupon regarded as if it had been fulfilled”, Digest L, t. 17, n. 161 (Ulpian). Quotiens per eum, cuius interest condicionem non impleri, fiat quo minus impleatur, perinde haberi, ac si impleta condicio fuisset. Here is grounded the observation not rarely made that at time, by allowing into our ecclesiastical tribunal evidence of the attachment of some conditions on the part of the spouse or spouses, especially against the substance of marriage, there is in some way admitted some clever kind (larvata specie) of divorce; because the permanence of the bond of the bond depends, at least in fact and externally, on the persistence of the marital will of one or the other spouse, as happens in divorce, although in our case the spouse pretends to prove that nullity existed from the beginning of the marriage.
Rule 41 is never cited in the Code although it could have been cited whenever preemptory deadlines for the conduct of juridic acts are set out because an exception can always be had if there was an impediment {to meeting a deadline}. I note Canon 177 that allows one elected eight days to seek the confirmation of the superior, as does Canon 181 in the case of postulation, wherein express mention is made of the absence of an impediment {being required for the eight days to run}. There is cited canonical Rule [25], One’s own delay is harmful, but Rule 41 could well have been cited. Likewise in Canon 188 one is considered as renouncing {his rights} who “within the useful time established by … the Ordinary, fails to take possession of the office”. {According to Canon 333,} [one to be ordained] a bishop must, unless he is impeded, must receive ordination within three months of the receipt of his apostolic letters, and take possession of his diocese within four months (unless he is a suburbicarian cardinal as discussed in Canon 238 § 2).
In procedural matters all the rules for deadlines in actions, appeals, preemption, prescription, such as in Canons 1736, 1739, 1741, 1870, 1881, 1885, 1886, and 1902 n. 2 fall within Rule 41.
Rule 42. The accessory is suited to follow the nature of the principal. Accessorium naturam sequi congruit principalis. Office.
Rule 43. One who is silent seems to consent. Qui tacit consentire videtur. Office.
Rule 44. One who is silent is not confessing but neither does he seem to deny. Is qui tacit non fatetur, sed nec utique negare videtur. Office.
Rule 45.
Rule 46. He who succeeds into the right of another must also use the same right. Is qui in ius succedit alterius, eo iure quo ille uti debebit. Office.
Rule 47. Ignorance is presumed when knowledge is not proven. Praesumitur ignorantia ubi scientia non probatur. Office.
Rule 48.
Rule 49. In penal matters the more benign interpretation is to be made. In poenis benignior est interpretatio facienda. Office.
Rule 51. Once something has been dedicated to God it is not also to be given over for the use of men. Semel Deo dicatum non est ad usus humanos ulterius transferendum.
Rule 51 is cited for two Pio-Benedictine provisions:
• 1917 CIC 1150. Consecrated things, or things blessed with a constitutive blessing, should be reverently treated and not applied for improper or profane use, even if they are under private control.
• 1917 CIC 1537. Sacred things shall not be made available for uses that are repugnant to their nature.
Sources:
• Digest XI, t. 7, n. 12 § 1 (Ulpian). A resolution of the Senate cautions against the use of burial places being polluted by changes, that is, against allowing the use of burial places for other things. Senatus consulto cavetur, ne usus sepulchrorum permutationibus polluatur, id est ne sepulchrum aliae conversationis usum accipiat.
• [=QLD V, t. 3, chap. 3 (Council of Senlis, 853), seu Friedberg II:=]. It is not becoming that what has once been consecrated to God be put to human uses. Quod enim semel Deo consecratum est ad humanos usus transferri non decet.
• In both testaments of Sacred Scripture there are abundant examples of this rule (for example, Balthasar [Daniel, passim] and the cleansing of the Temple [Matthew XXI, Mark XI, Luke XIX, and John II])
Discussion:
The reason behind Rule 51 is obvious: what has been dedicated to God belongs to God nor can it be withdrawn without injury: this would be theft. The ancient discipline in this area was much more severe than is the present, given the fervor of faith that then was happily more vigorous than it is today. For then it was forbidden even to use that which had belonged to a sacred space. “The wood of a dedicated church must not be joined to another work, unless it is to another church, or is burned in a fire, or is used in a monastery by the brothers; it must be allowed in the works of laity.” Gratian, Decretum, pars III, De consecratione, D. I, can. 38, seu Friedberg I: 1303. Ligna ecclesiae dedicatae non debent ad aliud opus iungi, nisi ad aliam ecclesiam, uel igni conburenda, uel ad profectum in monasterio fratribus; in laicorum opera non debent admitti. Even in allowing its use by a monastery the Gloss notes that the wood cannot be indifferently, but is to be used “in the chapter house, or dormitory, or in some other religious place, but not in the kitchen or in works related to the vineyards.” {cite=}
Today this discipline is mitigated for, according to Canon 1170, the Ordinary of the place can redirect a church for profane but not sordid use if it becomes unsuitable for worship or if the greater part of it is damaged (see Canon 1187). The same applies to an altar (see Canon 1200) if it is seriously broken or if the relics are removed. Blessed or consecrated sacred furnishings (such as a chalice and paten) 187 lose their consecration (see Canon 1305) if they undergo such damages or changes such that they lose their original form and are no longer considered useful for their purposes or if they have been put to indecorous use or exposed to public sale. When a sacred vessel or furnishing loses its blessing or consecration it can be treated as a non-sacred item, that is, used as any other vessel.
The ancient practice of the Church was rigorous in this area, but at the same time, it not only permitted but required the sale of sacred vessels to obtain money for the redemption of captives according to this wonderful expression in the Decretals, “The Church has gold not so as to keep it but to spend it and assist with necessities. … Why are so captives cast into trade not redeemed, but killed by enemies? It would have been better that you preserved living vessels than those made of metal. And what will you answer? I was worried that temple of God would be without ornamentation? He responds: The ornamentation of holy places is the redemption of captives, and they are the true precious vessels who redeem souls from death.” Gratian, De Concordantia, pars II, causa 12, n. 70 (Ambrose), seu Friedberg I: 710. Aurum ecclesia habet, non ut servet, sed ut eroget et subveniat in necessitatibus. […] Cur tot captivi in commercium ducti nec redempti, ab hoste occisi sunt? Melius fuerat, ut vasa viventium servares quam metallorum. His non posset responsum referri. Quid enim diceres? Timui, ne templo Dei ornatus deesset? Respondet: […] Ornatus sacrorum redemptio captivorum est, et vere illa sunt vasa preciosa, que= redimunt animas a morte.
The old law allowed also that superfluous precious vessels be sold to raise funds for the Church (see Gratian, De Concordantia, pars II, causa 10, q. 2, c. 2 § 1, seu Friedberg I: 618. Et habet superflua vasa nec aliunde solvere valet ne quid immobile alienetur vel distrahatur ea, gestis habitis coram eo, cuius est loci ordinatio aliis scilicet locis venerabilibus vel conflata cuilibet vendantur.
Comment: Besides the misleading citation provided by Bartoccetti here, the text in the version of the Decretum used by Bartoccetti differs markedly from that of Friedberg. Because, however, that same variant was used, it seems, by Reiffenstuel, from whom doubtless Bartoccetti takes this material, I have provided his version, below.
The sale of these sorts of precious objects is addressed by the Pio-Benedictine Code that, however, always requires apostolic approval (1917 CIC 1502 § 2 n. 1).
Rule 51 is cited only twice in the 1917 Code, namely for Canons 1150 and 1537, but it could have been usefully cited in other canons among which I would point out the following: Canon 1164 § 2 by which is prohibited the merely profane use of existing rooms above or below a church. It is not clear whether the use of a room underneath a church for a theater, films, and similar things, should be called a ‘profane use’.
Comment: To be clear, the uses described here (theatre, cinemas, etc.) are certainly profane; the question is whether they take place in a part of a church building wherein profane activities are prohibited.
Now, pastoral necessity {better: advantage} would often seem to make such uses permissible, provided that the events are presented in service to the faithful and Catholic activities (actioni catholicae) and not merely for profit. And Canon 1165 {§ 2} prohibits a bishop from permitting the construction of a church when it is foreseen that profane uses will be added to it. Likewise Canon 1169 {§ 4} prohibits the “merely profane use” of blessed bells, which applies not only to the metallic metal of which the bells consist but also to the ringing sounds which in themselves are to be in service only to divine worship, and not to, say, civil proclamations “except for the cause of necessity” (say, to repel storms or with the permission of the Ordinary or finally out of legitimate custom).
An altar must especially be entirely excluded from profane use and thus by Canon 1002 it is not licit to bury corpses under one and in fact burials must be removed from an altar by at least one meter for Mass to be celebrated on that altar.
These rules are more or less applicable to cemeteries as well in Canon 1205-1238.
189 Canon 1510 cautions in regard to sacred objects that are under private ownership that they “cannot be put to profane use; but if they have lost their consecration or blessing, they can be acquired even for profane use, though not [for] sordid [use].” These ‘non-sordid’ uses are not defined by the Code but are determined according to practice and custom.
Canon 1539 prohibits that, in the sale or exchange of sacred objects, “any account of the consecration or benediction can be included in the estimate of the price” because this plainly smacks of simony.
Rule 51 could also have been cited for Canons 2328-2329 that establish penalties against violators of churches or cemeteries. Moreover, when persons consecrated to God are violated in any way and profaned by blows, this rule could be recalled along with Canon 2343 that establishes penalties for those laying violent hands on clerics (see also Canon 119).
Rule 52.
Rule 53. One who is allowed to do more is certainly allowed to do less. Cui licet quod est plus licet utique quod est minus. Office.
Rule 54. Who is first in time is stronger in law. Qui prior est tempore potior est iure. Office.
Rule 55.
Rule 56. In common matters the one prohibiting is in a stronger position. In re communi potior est conditio prohibentis.
Rule 56 is not cited for any Pio-Benedictine provisions.
Sources:
Rule 56 is taken directly from Papinian.
• Digest X, t. 3, n. 28 (Papinian). Sabinus said that, on common property, no one of the owners is able legally to do anything if the other is opposed. Sabinus ait: In re communi neminem dominorum jure facere quicquam, invito altero, posse. {cit omm.}
• Digest [L, t. 17, n. 155] (Paul). One’s own act should harm oneself not an adversary. Factum cuique suum, non adversario, nocere debet.
Rule 56 is parallel to the Rule 29 201 “What touches all must be approved by all” and could have been cited for Canon 526 (which does cite Rule 29) on the election of religious confessors.
Discussion:
The origin of Rule 56 is found in the civil institution of common property with which matter the Code of Canon Law is not concerned and leaves to civil law. But in a situation of common possession alienation or other actions cannot be done without the consent of all the owners or possessors: therefore a single ‘veto’ suffices to impeded a proposed action.
The point is consistent with reason because no one can be deprived of his goods or be exposed to risk without his consent. But it must be said that this requirement of unanimity renders a common entity quite inept and practically paralytic because unanimity is not easily obtained especially if the community does not consist of homogenous elements. [In general] as a collective body acts there is required a majority, sometimes qualified (as for example, a two-thirds majority) such as for papal elections; but when unanimity is required the collective entity can do hardly anything especially if its members are not few. We have an outstanding example of this sort of paralysis in the League of Nations after the First World War and in the present United Nations: a Soviet veto has impeded 56 times the prevailing collective will. It similarly happened in the first attempts at a Confederation of North American States that had introduced not a system of majority [rule] for its 202 deliberations, instead, that system obviously supposed a certain limitation on the power of all the members. Precisely because the nations that founded the United Nations did not wish to suffer a limitation on their imperium (sovereignty) in that they feared that they were going to be subjected to deliberations that might displease them, the established the mechanism of ‘veto’, but in so doing damaged mightily the United Nations which has been rendered inept at ordering and doing and therefore has emerged practically useless. For it is impossible to reap the benefits that come from such a social union without the correlatives inconvenience of limitations on sovereignty hitherto possessed before the founding of such a society, as was explained above in regard to canonical Rule 55.
The contradiction and internal irrationality of this ‘veto’ also appears in the following consideration: a society or shared governance (condominium) exists precisely as does any other pecuniary society exists from the contribution of a part-owner made by an individual member of a society: but if these individuals wish to preserve intact their independence and their sovereignty, they want and at the same time do not want the society to exist, that is, they wish it to exist theoretically but practically they do not want it to exist in that they remove the only element by which it can exist. This internal contradiction will sooner or later destroy the entire institution of the United Nations unless the ‘veto’ is eliminated and it is reorganized so that the majority of ballots constitutes the collective will.
203
Rule 57. Against him who could more openly pronounce the law should interpretation be made. Contra eum qui legem dicere potuit apertius est interpretatio facienda. Office.
Rule 58. An oath offered against good morals does not oblige. Non est obligatorium contra bonos mores praestitum iuramentum. Office.
Rule 59. He acts with malice who demands what he must return. Dolo facit qui petit quod restituere oportet eumdem. Office.
Rule 60. One is not in delay who can, by legitimate exception, defend himself. Non est in mora qui potest exceptione legitima se tueri. Office.
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Rule 61. What as a favor for someone is given should not be turned to his disadvantage. Quod ob gratiam alicuius conceditur non est in eius dispendium retorquendum. Office.
Rule 62. No one is liable for advice provided it was not fraudulent. Nullus est consilio, dummodo fraudolentum non fuerit obligatur. Office.
Rule 63. Raising an exception is not seen as admitting the assertion of the accuser. Exceptionem obiiciens non videtur de intentione adversarii confiteri. Office.
Rule 64. Those things done against the law must surely be regarded as null. Quae contra ius fiunt, debent utique pro infectis haberi.
Rule 64 is cited for eight Pio-Benedictine provisions:
• 1917 CIC 0103 § 1. Acts placed by physical or moral persons in virtue of extrinsic force that cannot be resisted, are considered invalid.
• 1917 CIC 0169 § 1 n. 2. A vote is null unless it was: … 2° Secret, certain, absolute, and determinate.
• 1917 CIC 0185. Resignation is invalid by law if it was made out of grave fear unjustly inflicted, [or from] fraud, substantial error, or simony.
• 1917 CIC 0572 § 1. § 1. For the validity of any religious profession it is required that: 1° The one who is to give it must have the legitimate age according to the norm of Canon 573; 2° The legitimate Superior according to the constitutions admits him to profession; 3° A valid novitiate according to the norm of Canon 555 will have preceded; 4° The profession be given without force or grave fear or dolus; 5° It be express; 6° It be received by the legitimate Superior according to the constitutions personally or through another.
• 1917 CIC 1087 § 1. § 1. Also invalid is that marriage entered into under force or grave fear, externally and unjustly imposed, [such that] in order to be free of it, one is coerced into choosing marriage.
• 1917 CIC 1855 § 1. Attempts are null by the law.
• 1917 CIC 1905 § 2 n. 4. The injustice is not considered to have been proven manifest unless: … 4° A prescription of law was evidently neglected.
• 1917 CIC 2238. The remission of a penalty extorted by force or grave fear is invalid by the law.
Sources and Discussion:
[De Mauri (1905) 91]. Whatever is done against the law is considered as corrupt. “Quidquid fit contra legem pro infecto habendum.”
Comment: Bartoccetti’s Code citation for this rule (l. 5 C. de legib.) was not helpful but two passages from the Code might be suggested: Code I, t. 14, n. 5 § 1 (Theodosius and Valentinian). Those things that are prohibited by law from being done, if they are done, are not only useless, but are regarded as of no effect. Ea quae lege fieri prohibentur, si fuerint facta, non solum inutilia, sed pro infectis etiam habeantur; and, Code I, t. 2, n. 14 § 4. Those things that are done against the laws are considered of no effect. Ea, quae contra leges fiunt, pro infectis habenda sunt. Black's Law Dictionary (1979) presents the rule in close to Bartoccetti’s terms: Quod contra legem fit pro infecto habetur.
Nevertheless Rule 64 is rightly called very difficult by the famous Reiffenstuel {cite=?} but it should be called instead the height of dangerous and equivocal for some things are those done against the law in general, but only those things that the law expressly makes void.^ Voet explains it thus: Acts done against the law are by the law itself infirm, if because the law expressly says so or if what was done obviously and permanently labors under turpitude, or if [the law] denied the faculty or ability to act to him who did the act. Contra leges gesta ipso iure infirma sunt, si id lex nominatim expressit, vel id quod gestum manifesta ac permanenti turpitudine laboret; vel ei qui quid gessit aut fecit gerendi facultatem et habilitatem denegaverit. {Citation: Johannis Voet (Dutch Reformed, 1647-1713), Commentariorum ad Pandectas Libri Quinquaginta, in 5 vols., vol. I (5° ed,1827), De legibus n. 16, at p. 18, on-line here.}
As a matter of fact, frequently those things that are void and null at the beginning are later, with the express or tacit consent of the contractants, able to become effective as the following shows: “Things done against the law can, at the beginning, seem useless, but with assent them coming later, their utility emerges, being ratified.” Quae ab initio contra leges {gesta} inutilia videri poterant ac inefficacia, subsecuto deinde eorum assensu, quorum vertebantur utilitas, rata fiant. {Though not cited, Bartoccetti’s text clearly came from an Italian penal law review, the Supplemento alla Revista Penale (1902) at page 173, on-line here, which offers as references the same materials cited by Bartoccetti. The first and second of those citations, Digest XXIII, t. 2, n. 65 § 1 (Paul) and Code V, t. 4, n. 6 (Gordian), deal with marriages null at the time of the wedding but rehabilitated with the passage of time. The third citation, Code I, t. 53, n. 1 § 1, deals with the rehabilitation of some other acts over time; none of them offer the text as quoted by Bartoccetti.}
Rule 64 therefore, in its full and plain import is false and actually but by arguing from it we can easily slip into absurdities, as not infrequently happens in courts and in daily affairs. For this reason Rule 64 itself is considered suspect by wise men and such as might perhaps come along after does not deserve to be taken up. Nevertheless Rule 64 has found a happy home in the Pio-Benedictine Code.
It should be said, however, that citations of canons that treat force and fear, fraud, substantial error, and so on, and not fully applicable to Rule 64 because in such cases (with the possible exception of violence, a factor that impedes a human act), these do not actually render the act null, but rather rescindable, something entirely different.
On the other hand Rule 64 could be rightly cited in several places in the 1917 Code wherein acts are rendered null because some substantive norms of law were not observed but it would be very laborious to list them and I do not have time to do so.
It could rather be said by Rule 64 and from that rule or very common juridic expression that “what is null produces no effect,” Quod nullum est nullum producit effectum. [De Mauri (1905) 91]. {See also Black's Law Dictionary (1979) at 1128.} comes from a more recent time, namely, after The Council of Trent, this tendency to make very difficult the convalidation of a marriage null from the outset because of some impediment or defect of consent, even if later the impediment ceased and consent perdured. This convalidation is practically excluded by Canons 1133-1137 in all cases of the external forum and even by “ecclesiastical law”, namely, by the will of the law not by the nature of the thing; as if it were important to the Church to preserve a matrimonial state as not already certain but always uncertain. This works something amazing because it fights opposite to the discipline of the Decretals that is in general preserved in civilian codes.
As to, for example, a case of force and fear, the civil Codes (such as the Italian Code art. 122) allow marriage to be impugned by a spouse who suffered the fear, but said action cannot be proposed if, the fear having ceased, that party freely cohabited for one month. The Code of Canon Law, on the other hand, leaves such a marriage null perpetually (provided such fear can be proven in the external forum) until such time as it might be celebrated as if the verbal declaration of the woman that she wished to live with the man were worth more than the fact of voluntary cohabitation. This is difficult to understand. If I talk with a man or a woman in some house and I lock the bars on the doors, they could rightly complain that they were forced by me; but if I open the doors and they stay in the house, who will listen if they complain about force being imposed on them that way?
Comment: Bartoccetti slightly misspeaks here, for any marriage, subsequent to having followed canonical form, is presumed to be valid, although, as Bartoccetti rightly regrets, the specific marriage posited here is open to impugnment (an impugnment moreover likely to succeed). That issue aside, he makes an interesting point by recalling that, indeed, actions do speak louder than words but the requirement of canonical form renders reading the significance of these actions irrelevant. Bartoccetti makes this observation several times.
Rule 65. Where there is equal blame or case the condition of the possessor is stronger. In pari delicto et causa potior est conditio possidentis. Office.
Rule 66. When it does not rest with the one to whom it belongs that a condition be fulfilled the condition must be considered as if it had been fulfilled. Cum non stat per eum ad quem pertinet quominus conditio impleatur, haberi debet perinde ac si impleta fuisset.
Rule 66 is not cited for any Pio-Benedictine provision.
Sources:
• Digest L, t. 17, n. 39 (Pomponius). In every case a thing is accepted as having been done, wherein one is delayed from performing it by another. In omnibus causis pro facto accipitur id, in quo per alium morae sit, quo minus fiat.
• Digest L, t. 17, n. [161] (Ulpian). In civil law is has been received that, whenever one in whose favor it would be that a condition not be fulfilled, makes it so it is not fulfilled, it is thereafter considered as if it had been fulfilled. In iure civili receptum est, quotiens per eum cuius interest conditionem non impleri, fiat quo minus impleatur, perinde haberi, ac si impleta condicio fuisset.
Discussion:
Rule 66 is derived from canonical Rule 7 “No one can be bound to the impossible” and has a strong analogy with canonical Rule 41 “It must not be imputed to him with whom it does not rest if something was not done that should have been done by him.” The difference between Rule 41 and the present Rule 66 is that in the first rule there is contemplated the physical impossibility or in any case something not attributable to ill will, 223 and therefore the condition is considered as not fulfilled but without fault or obligated responsibility [i.e., no payment is owed]; in the second, on the other hand, a different hypothesis is before one’s eyes, namely one whereby one wishes to fulfill; the obligation to which he is bound but he is impeded from fulfilling it by the person who has an interest in the condition not being fulfilled: the consequence in this case is very different form that in the first; for this condition is deemed as fulfilled [i.e., payment is owed]. The reason is clear, to prevent the one impeding [the fulfillment of the condition] from achieving thereby something useful because ‘neither fraud nor malice must be allowed from anyone.’
This hypothesis is somewhat elaborate but not irrational: If someone contracts with another and promises to give him ten [coins] if he climbs up the Capitolium, but it rests with the first whether the second actually ascends, insofar as the second is impeded by the first the condition is deemed fulfilled and the payment is owed.
Rule 66 is never cited in the Pio-Benedictine Code and actually it would not be easy to suggest where it might have been cited, as it is a norm referring^ to particular contracts such as conventions, bequests, and so on. Perhaps it would not have been out of place for Canons 1854-1857 on attempts.
Rule 67. What is not licit for one on his own will not be licit in the name of another. Quod alicui suo non licet nomine nec alieno licebit.
Rule 67 is not cited for any Pio-Benedictine provision.
Sources and discussion:
Rule 67 is, on its face, the negative of the following Rule 68 and could have been often cited where Rule 68 is cited. It is manifestly reasonable that one prohibited from doing something on his own 224 cannot do that same thing through another. In Roman law we read, “When one is prohibited from doing in his name neither must he do it through a subject person”, Digest L, t. 8, n. 2 § 1 (Ulpian). Quod quis suo nomine exercere prohibetur, id nec per subiectam personam agere debet.
Rule 67 must be read in the context of illicit matter and as prohibited by law for, if the matter were licit, Rule 68 would have its place.
Recall here Rule 84 “When one is prohibited something in one way it must not be allowed him in another.”
Rule 67 is never cited in the Pio-Benedictine Code but it could have a place when cooperation in crime is an issue as is the situation for Canon 2209 §§ 3 and 4 on a mandator and executioner [of a order], and likewise in Canon 2333 on a censure against those impeding directly or indirectly the promulgation and execution of apostolic letters by having recourse to civil (laicam) authority; likewise in Canon 2337 on a pastor who incites the people to impeded the ecclesiastical jurisdiction of a new pastor of his ingress [into office].
Rule 68. One can do through another what he can do himself. Potest quis per alium quod potest facere per seipsum. Office.
Rule 69. It is not expedient that faithfulness be observed regarding evil promises. In malis promissis fides non expedit observari.
Rule 69 is cited for one Pio-Benedictine provision:
• 1917 CIC 1318. § 1. A promissory oath follows the nature and conditions of the act to which it is attached. 228 § 2. If an oath is attached to an act directly verging on damage to others or prejudice to the public good or eternal salvation, the act achieves no strength therefrom.
Also cited for this canon is Rule 58.
No specific sources for Rule 69 are suggested.
Discussion:
Rule 69 is practically identical with Rule 58 “An oath offered against good morals does not oblige.” The commentators experienced difficulty in distinguishing between these two rules but Barbosa found a difference in the phrasing of Rule 69 about “evil promises” which were understood as illegitimate promises, namely, those obtained unjustly or by force of malice, although the matter promised was legitimate and good, whereupon those promises need not be observed; on the other hand in Rule 58 there is more attention given to the matters promised, namely, thing against good morals. But it should be observed that a promise obtained by fear or malice is of itself rescindable even though the promise concerns a licit matter and thus does not seem to bind the promissor. On the other hand “an oath against good morals” discussed in Rule 58 can be well understood as an oath imposed by force or obtained by malice because surely malice and force and fear are against good morals.
The difference between the two rules is rather in this, that Rule 58 deals with a promise confirmed by oath, while from a simple (nudam) promise arises only an obligation based on fidelity and not also on religion as in the previous example. It is obvious that God, by religion, cannot endorse a sinful proposal but perhaps there is some person who would be able to think that what he promised binds him by some obligation at least in terms of fidelity and coherence toward the person to whom he made the promise, as with the devil in ancient legends; our rule fully absolves him from keeping faith then, because no one can be validly obliged in any way to a turpitude, and turpitude is rightly seen as something equivalent to impossibility, something to which obligation never applies.
Rule 70. When there are alternatives the choice belongs to the debtor and it suffices that either one be fulfilled. In alternativis debitoris est electio et sufficit alterum adimpleri.
Rule 67 is not cited for any Pio-Benedictine provision.
Rule 70 arises from a norm of civil law:
• =. Si emptio ita perfecta fuerit est mihi emptus Stychus vel Pamphylus, in potestate est venditoris quem velit dare, sicut in stipulationibus. {cite}
• =. Ubi verba coniuncta non sunt, sufficit alterutrum esse factum. {cite}
Discussion:
Rule 70 is an unremarkable consequence of canonical Rule 30 “In obscure matters the minimum is to be followed” In obscuris minimum est sequendum. For, in a case where there are offered to a debtor two ways of resolving a debt it belongs to him to choose whichsoever he prefers.
Rule 70 is, in reality, strictly a civil concern nor is it easily perceived where it could be recalled among the sources for the Code. Perhaps it would not have been out of place in regard to Canon 1017 § 3 in which there is granted to an abandoned fiancée an action for damages and, even better, for the commutation of vows under Canon 1314, for this debt to God could be equivalently satisfied 230 by the benignity of the Church: finally, if less appropriately, it might be noted with Canon 1517 concerning the reduction of burdens.
Rule 71. One who is allowed to make a petition must all the more be allowed to raise an exception. Qui ad agendum admittitur est ad excipiendum multo magis admittendus. Office.
Rule 72. One who acts through another [is regarded] thereafter as if he had acted himself. Qui facit per alium est perinde ac si faciat per seipsum. Office.
Rule 73. A legitimate action must not be withdrawn even though a case might arise later by which would not have been allowed to begin. Factum legitimum retrotrahi non debet, licet casus postea eveniat a quo non potuit inchoari. Office.
Rule 74. What was graciously granted to someone must not be used as an example in other matters. Quod alicui gratiose conceditur trahi non debet ab aliis in exemplum. Office.
Rule 75. In vain does one ask that fidelity be observed toward himself who refuses to observe the fidelity offered by himself to the other. Frustra sibi fidem quis postulat ab eo servari, cui fidem a se praestitam servare recusat. Office.
Rule 76. The wrong-doing of a person must not redound to the detriment of the Church. Delictum personae non debet in detrimentum Ecclesiae redundare. Office.
Rule 77. It makes sense that one should succeed in responsibility who is put in the place of another in honor. Rationi congruit ut succedat in onere qui substituitur in honore. Office.
Rule 78. Concessions sometimes made because of necessity cannot be used as an argument. In argumentum trahi nequeunt quae propter necessitatem aliquando sunt concessa.
Rule 78 is cited for one Pio-Benedictine provision:
• 1917 CIC 85. Not only is dispensation subject to strict interpretation in accord with the norm of Canon 50, but so too is the faculty of dispensing that is granted for a certain case. (Canon 85 cites also Rules 28, 74, and 81).
Sources:
• Digest L, t. 17, n. 162 (Paulus). What is recognized because of necessity must not be applied in arguments. Quae propter necessitatem recepta sunt, non debent in argumentum trahi.
Discussion:
The famous expression, “necessity knows no law”, truly resounds here in that those things that come about due to necessity have no other juridic force in themselves, nor can they so have, and thus they cannot be used as examples, this by common thinking.
241 Rule 78 is cited just this once and I might say less than properly, because dispensations and faculties for dispensing are not given only for cases of necessity but more often in a case of simple opportunity or convenience. The other Rules cited in Canon 85 (namely, Rules 28, 74, and 81) square much more with this canon.
Rule 78 might also be adapted better to Canon 1044 for the difficult case in which true urgency and near necessity are often present.
Likewise, to some extent, Rule 78 might be relevant to Canon 2168 § 2 that treats of suspension from an informed conscience (suspensio ex informata conscientia) which measure can be applied only in the circumstances well-delineated in Canon 2191, with the precautions envisioned in Canons 2188, 2189, 2190, and 2194.
Comment: The suggested usefulness of Rule 78 toward illuminating 1917 CIC 2168 § 2 is not evident.
Rule 78 could perhaps be cited in canons that treat of dispensations, absolutions, and so on to be applied “in danger of death” (in articulo mortis) which cannot be given when the situation is not extreme and extreme necessity is not present (see Canons 882, 884, 2252, 2253, 2254, and so on).
Rule 79. No one can transfer more right to another than he can claim for himself. Nemo potest plus iuris transferre in alium quam sibi ipsi competere diagnoscatur.
Rule 79 is not cited for any Pio-Benedictine provision.
Sources for Rule 79:
• Digest L, t. 17, n. [54] (Ulpianus). No one can transfer to another more rights than he himself had. Nemo plus iuris ad alium transferre potest, quam ipse haberet.
• Digest L, t. 17, n. 120 (Paul). No one leaves more advantage to his heir 242 than he himself had. Nemo plus commodi heredi suo relinquit, quam ipse habuit.
Discussion of Rule 79:
Rule 79 is never cited even though it could have found a place among those canons that cite Rules 68 and 72 with which it is analogous. Those rules are not seldom cited and perhaps Rule 79 would not be incongruous with them and might merit recollection, although the point is so obvious and clear that it might seem useless to point it out, given that obvious matters need no explanation. In any event, in regard to delegation, succession, and dispensation Rule 79 certainly applies and indeed could not not apply.
Rule 80. In the whole the part is no doubt contained. In toto partem non est dubium contineri.
Rule 80 is cited for three Pio-Benedictine provisions:
• 1917 CIC 66 § 3. The grant of faculties also carries with it other powers that are necessary for their use; for that reason, there is included the faculty of dispensing and also the power of absolving from ecclesiastical penalties if perchance these obstruct matters, but only to the degree [needed] to bring about the effect of the dispensation. (Rules 35, 42, 53 are also cited for this canon.)
• 1917 CIC 200 § 1. Ordinary power of jurisdiction delegated for a universe of causes is to be widely interpreted; any others are to be strictly [interpreted]; the one to whom power is delegated is also understood as having all that power that, if lacking, would render him unable to exercise power. (Rules 35, 42, 53 are also cited for this canon.)
• 1917 CIC 2273. A city being interdicted, the interdict also effects accessory places, even exempt ones, and the cathedral church itself; if a church is interdicted; likewise interdicted are 243 attached chapels, but not the cemetery; if a chapel is interdicted, the main church is not interdicted nor, if a cemetery is interdicted, is a church attached to it interdicted, but all oratories erected in the cemetery are interdicted. (Rules 35 and 42, are also cited for this canon.)
Sources:
• Digest L, t. 17, n. 113 (Gaius). A part is included in the whole. In toto et pars continetur.
Discussion:
This primary principle is obvious and from it no doubt can arise. It is analogous to Rule 35 “More always contains within itself that which is less.” Rule 80 is cited thrice in the Pio-Benedictine Code, as indicated above, but it could have been cited for Canon 1052, which does cite Rule 35, in treating of matrimonial dispensations as being effective for equal or inferior grades [of affinity or consanguinity] that were not expressly mentioned in the petition.
The usefulness of Rule 80 is not great for it is not necessary to set out matters that are obvious; all who think about these things know them by necessity.
Rule 81. In a general grant do not come those things that one would not likely to grant specifically under similar circumstances. In generali concessione non veniunt ea quae quis non esset verisimiliter in specie concessurus.
Comment: Bartoccetti has, albeit without changing its import, presented Rule 81 negatively although it had been phrased positively by Boniface thus: In a general grant come specifically those things that one is likely to have granted under similar circumstances. In generali concessione veniunt ea quae quis esset verisimiliter in specie concessurus.
Rule 81 is cited for six Pio-Benedictine provisions:
• 1917 CIC 85. Not only is dispensation subject to strict interpretation in accord with the norm of Canon 50 but so too is the faculty of dispensing that is granted for a certain case. (Note that Rules 28, 74 and 78 are also cited in this canon.)
• 1917 CIC 368 § 1. The Vicar General, in virtue of his office, is competent in the universal jurisdiction of the diocese for spiritual and temporal [things] that pertain to the Bishop by ordinary law excepting those things that the Bishop preserves to himself 244 or that by law require a special mandate of the Bishop.
• 1917 CIC 1089 § 1. With due regard for diocesan statutes added to the above, in order that marriage be entered into validly by proxy, there is required a special mandate to contract [marriage] with a certain person, signed by the mandator and either by the pastor or the Ordinary of the place in which the mandator is, or by a priest delegated by either of them, or by at least two witnesses.
• 1917 CIC 1403 § 1. Those who have been accorded the apostolic faculty of reading and retaining prohibited books cannot therefore read and retain any books proscribed by their own Ordinaries unless it has been made express in the faculty that there is power to read and retain books no matter by whom condemned.
• 1917 CIC 1662. Unless he has a special mandate, a procurator cannot renounce an action, an instance, or a judicial act, nor settle, make peace with, nor commit to arbitration an offer, nor take an oath [as evidence or in resolution of a case], nor generally do those things for which the law requires a special mandate.
• 1917 CIC 1740 § 2. In order the renunciation be valid it must be done in writing and must be signed by the party or his procurator, provided he has a special mandate for this, and must be communicated to the other party and accepted by him or at least not impugned and admitted by the judge.
Sources for Rule 81:
• In VI° V, t. 10, c. 2 (Boniface VIII), seu Friedberg II: 1093. In a general grant those things do not come that one is not likely to grant under similar circumstances. In generali concessione illa non veniunt quae non esset quis verisimiliter [in specie] concessurus.
• Digest XX, t. 1, n. 6. (Ulpian). Under a general obligation concerning items are not included those things that one has or will have which 245 under similar circumstances would not be obligated such as, say, furnishings and clothes. Obligatione generali rerum, quas quis habuit habiturusve sit, ea non continebuntur, quae verisimile est quemquam specialiter obligaturum non fuisse, ut puta supellex, item vestis.
Comment: Bartoccetti’s rendition of Ulpian’s rule strayed rather from that offered by Mommsen-Krüger.
Discussion of Rule 81:
The notion of ‘similarity’ includes those things that exceed a common grant for one who grants something is deemed to grant also those things without which the grant would become useless or dangerous, though of course no one presumes that such inclusions amount to ten or fifteen times the original, although in contrast one is logically bound to have granted three or four. The matter is so obvious that it needs no explanation. Rule 81 warrants good consideration in a Code that alludes to it where specific faculties or a special mandate are required.
Rule 82. One who bargains against the law is presumed not to have good faith. Qui contra ius mercatur bonam fidem praesumitur non habere.
Rule 82 is not cited for any Pio-Benedictine provision.
Sources for Rule 82:
• = Malae fidei possessorem esse nullus ambigit, qui aliquid contra, legum interdicta mercatur.
• Digest XVII, t. 2, n. 3 (Paul). Good faith is contrary to fraud and maliciousness. Fides bona contraria est fraudi et dolo.
• Digest L, t. 17, n. 136 (Paul). Good faith serves the possessor thereof as much as does truth whenever the law is not an impediment. Bona fides tantundem possidenti praestat, quantum veritas, quotiens lex impedimento non est.
• 246 Publilius Syrus, =. Who loses trustworthiness can lose nothing else. Fidem qui perdit perdere ultra nil potest.
Comment: The actual source Bartoccetti used for this text cannot be identified from his citation thereto.
Discussion of Rule 82:
The sense behind Rule 82 is obvious and, although it speaks of commercial matters, it can easily be extended to all contracts and juridic acts in which that maliciousness which is synonymous with bad faith arises. Malice (dolus) is presumed whenever there is an external violation of the law until the contrary is proven (see Canon 2200 § 2 which could have usefully cited this rule).
The Rule could also be cited in reference to those canons that address the nullity or rescindability of acts ‘ex dolo’ (due to malice), for example: Canon 185 in regard to renunciation of a benefice acquired by malice, which acquisition is null by law; Canons 542 n. 1 and 572 n. 4 on malice during one’s entrance into [religious life] or religious profession; Canon 1684-1686 on a rescissory action, and likewise Canon 1512 § 2 an attempts during litigation. It could aptly be recalled in Canon 1512 that requires good faith for acquisitive or liberative prescription and indeed this not only at the outset of possession and throughout the whole time of possession.
From this principle can also be well gleaned the point of Canon 1971 that prevents a spouse who was the cause of an impediment from impugning that marriage. The norms is chiefly concerned with kidnappers and coercers who clearly cannot be allowed to prove the nullity of marriage caused by their own act against the law.
Comment: Canon 1971 of the Pio-Benedictine Code did not survive into the Johanno-Pauline Code and in that sense Bartoccetti's comment thereon is moot, but it worth noting that the logic behind Canon 1971 was never, in my view, persuasive. Nullity is nullity and one's responsibility for that nullity should not preclude one's ability point it out, not, that is, if nullity actions call for determinations based on law, not likeability.
Rule 83. Good faith does not allow that what was exacted once is demanded again. Bona fides non patitur ut semel exactum iterum exigatur.
Rule 83 is not cited for any Pio-Benedictine provision.
Sources for Rule 83:
• Digest L, t. 17, n. 57 (Gaius). Good faith does not allow that the same thing be required twice. Bona fides non patitur, ut bis idem exigatur.
Discussion of Rule 83:
Rule 83 is obvious: if payment were required twice for the same debt a theft would be committed because, as the debt was already extinguished by the first payment, if more were demanded it would be nothing but an unjust taking.
The rule seems superfluous because it is so obvious, nevertheless one could invoke it in cases that might arise when a debtor has indeed paid the whole amount to creditor but is unable to prove such payment in court, whether through documents or witnesses, and the creditor (who observes negligence or too much good faith in the debtor) insists, asserting no payment of the debt has been made to him and demands the judge to condemn the convened party to pay the sum that he denies having received.
How should a judge conduct himself in such a case? The burden of proof falls on the petitioner, so in this case, the creditor must prove the debt which quite likely he will be able to do easily for otherwise he would not have dared to institute a suit; the convened party will take exception to the effect that he paid the debt but, then, as a respondent raising an exception becomes a petitioner, he must produce some proof of his assertion to the judge (say, witnesses, private accounting records, and so on) and, in an extreme case, the judge can put an oath to the petitioner. If he offers to the judge no proof or at least evidence of payment 248 through witnesses, he is easily condemned. But he would impugn himself, for oaths help the prudent, and he was imprudent by not demanding from the debtor documentation of the payment done (quietanza) [Italian, “receipt”] or by not preserving that document.
Rule 84. When one is prohibited something in one way it must not be allowed him in another. Cum quid una via prohibetur alicui ad id alia non debet admitti. Office.
Rule 85. A contract by convention recognizes its own law. Contractus ex conventione legem accipere diagnoscitur. Office.
Rule 86. One must not impute to others a harm that one experiences by his own fault. Damnum quod quis sua culpa sentit sibi debet non aliis imputare. Office.
Rule 87.
Rule 88. It is certain that one works against the law who, while fulfilling the text of the law, strives against the wish of the law. Certum est quod is committit in lege, qui legis verbum complectens, contra legis nititur voluntatem. Office.
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263 Comprehensive overview of citations of the Rules in the Code of Canon Law
1) The Rules are cited 210 times in the Pio-Benedictine Code.
2) The following canons reproduce certain Rules:
Canon 74 (A personal privilege follows the person and expires with him) reproduces Rule 07 verbatim.
Canon 101 n. 2 (Whatever touches all as individuals must be approved by all) essentially reproduces Rule 29 (adding only the words "as individuals").
Canon 2219 § 1 (In penalties the more benign interpretation is to be followed) reproduces Rule 07 verbatim.
3) Rules cited in the Pio-Benedictine Code.
264 4. Frequency of citations of individual Rules in the Pio-Benedictine Code.
Rule 72 is cited twenty times in the Code. Rule
68 is cited nineteen times in the Code. Rule
15 is cited twelve times in the Code. Rules
25, 42, 46 are cited eleven times in the Code. Rule
54 is cited nine times in the Code. Rule
64 is cited eight times in the Code. Rule
49 is cited seven times in the Code. Rules
81, 87 are cited six times in the Code. Rules
23, 33, 76 are cited five times in the Code. Rules
30, 35 are cited four times in the Code. Rules
01, 13, 16, 21, 53, 61, 74, 80
are cited three times in the Code. Rules 11, 18, 28, 29, 31, 48,
51, 58, 65, 69, 75, 84 are cited twice in the Code. Rules 02,
03, 04, 07, 08, 12, 14, 20, 22, 26, 27, 34, 37, 43, 45, 47, 78, 85 are cited
once in the Code.
5. Fifty-six Rules are cited in the Code while thirty-two are not.
Rules 01, 02, 03, 04, 05, 07, 08,11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 42, 43, 45, 46, 47, 48, 49, 51, 53, 54, 58, 61, 64, 65, 68, 69, 72, 74, 75, 76, 78, 80, 81, 84, 85, 87, are cited in the Code.
Rules 06, 09, 10, 17, 19, 24, 32, 36, 38, 39, 40, 41,
44, 50, 53, 55, 56, 57, 60, 62, 63, 66, 67, 70, 71, 73, 77, 79, 82, 83, 86, 88
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265 Rules of Roman Law and Rule of Law in Sexto
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268 On the Eleven Rules of Law in the Fifth Book of the Decretals of Gregory IX
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Appendix 4
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275 Division of the Rules Based on Their Materials
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288 The Rules on Trial, that is, Their (or at least some of their) Prosecution and Defense
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299 The Rules of the Chancery
As Ferraris notes, “The Rules of the Chancery are certain apostolic provisions (constitutiones) that a pope, at the outset of his pontificate, issues in regard to benefice matters and other judicial cases, or in regard to those rules already issued by his predecessors that he decides to renew, augment, or diminish in view of the variety of the cases occurring. The first pope to produce Rules of the Chancery, effectively laws for the Chancery, and to reduce these provisions to writing was John XXII. …The Rules of the Chancery underwent, over time, many augmentations or greater declarations.” {Ferraris, Prompta Biblioteca, Roma (1755/1784), Tom. I, p. 410. (Or see: Ferraris, s.v. “Cancellaria”, Prompta Biblioteca (1755/1845) II: 40-45, at 41, nn. 4-6.)}
These rules deal with benefices, specifically their foundational grant, their resignation, litigation, and so on. Classical commentary thereon is rooted in [Giovanni Lorenzo] Riganti.
Although this topic treats materials pertaining more to history than to current law, and even though the matter itself is highly particularized, nevertheless it seems that some provisions draw on general norms of equity and of justice and as such are worthy of consideration.
Consider the following Chancery Rule 18 On not tolling an acquired right in which the pope shows himself quite unwilling 300 to injure an acquired right of anyone granted by favor, and so on, even if given on his own initiative.
“Our Lord Pope decreed and declared his mind that, hereafter, though whatever signing, that is, by concession or favor or apostolic letters for commissions, or mandates, or declarations of this sort, even those done on his own initiative and based on certain knowledge, and even [if] they will have come from His Holiness before the litigation was opened or were done by his mandate, a right acquired by someone is not in any manner tolled.”
The importance and scope of the consequences of this Chancery Rule, one that superbly corresponds to justice and equity, are evident.
Chancery Rule 36 On the three-year possession of benefice which, provided it has been peaceful and in good faith, heals invalidity in the title of its conferral (unless it was simoniacal), as it now established in Canon 1446.
Chancery Rule 37 On not appealing a matter until definitive sentence, refers to the key procedural norm contained in Canon 1880 n. 6 and in article 214 of the instruction Provida issued by the Congregation for Sacraments on August 15, 1936.
“Likewise Our Lord Pope, in order to conclude litigation more quickly and to spare litigants some burdens and expenses, adhering to the constitutions and statutes of his predecessors, establishes and directs that, in pending cases and those that might be treated in the future, 301 no one is allowed to appeal before definitive sentence, nor must an appeal be admitted if it has been issued, except from an interlocutory sentence that has definitive force, or from a matter minimally concerning the principle issue that cannot be repaired by appeal from a definitive sentence.” This provision is obviously helpful toward reducing delays in cases, as experience in Italian civil procedure shows wherein the progress of cases is hampered without end by the acceptance of such appeals regarding matters not having definitive force.
Chancery Rule 49. On dispensation from degrees of consanguinity. “The pope desires that, in letters of dispensation concerning some grade of consanguinity or affinity or some other prohibition, a clause be added as follows: ‘Provided the mother has not been raped.’” This comes from a detestation of the crime of rape.
Chancery Rule 50, On a defect of birth. “The pope desires that, in dispensations from defect of birth, a clause be added whereby the one dispensed is allowed to succeed to temporal goods, as follows: ‘What is not prejudicial to others must belong to them by an intestate succession of goods.’”
Comment: The 'defects of birth' referred to herein are legal disabilities that had long arisen from, say, one's birth out of wedlock and which worked serious hardships on persons who were, of course, not responsible for their situation. See. e.g., 1917 CIC 1051. These disabilities do not appear in the 1983 Code.
The above materials are offered more for the sake of background than for any practical needs in that the Rules of the Chancery have only a certain distant relation to the Rules of Law, something, I think, apparent from this brief review thereof.
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Bibliographic synthesis
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See the complete bibliography in: Francis Reh (American priest, 1911-1994), The rules of law and canon law, (Gregorian doctoral diss. 191, 1939) 98 pp.
Generally all commentators on Canon Law have treated the Rules of Law more or less broadly, indicating the sources and origins of the Rules along with their more significant applications and mistakes. There is a fundamental gloss on this (in, for example, the Roman edition of the Corpus Iuris Canonici of 1572 =).
Among the more significant authors coming to mind are:
Johannes Andreas "In titulum de Regulis Iuris novella commentaria", Venice 1581.
Peter Peckius =
Augustinus Barbosa =
The most complete commentator is Anacletus Reiffenstuel =. His treatise in this are rightly holds the first place and does it seem likely to be surpassed.
The following works are also useful:
J. B. Antoine =
Luigi De Mauri =
Worthy of special mention
Francis Reh =
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Original texts of quotations used by Bartoccetti
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004. “Regula est quae rem quae est breviter enarrat. Non ut ex regula jus sumatur, sed ex jure quod est regula fiat. Per regulam igitur brevis rerum narratio traditur, et, ut ait Sabinus, quasi causae coniectio est. Quae simul cum in aliquo vitiate est, perdit officium suum.”
005. “Omnis definitio in jure civili periculosa est: parum est enim ut non subverti possit.”
005. dicitur, solemus dicere, plerumque solemus dicere, dictum est, vulgo dicitur, vulgo traditur, vulgo creditum est; veteres definiverunt, decreverunt, putaverunt, responderunt, constituerunt; veteribus placuit, antiquitus placuit, generaliter placuit, talis regula comprobata est, talem habemus regulam traditam, regula juris est, certissima regula juris est, constat, obtinuit, non novum est, etc.
006. “Sunt regulae juris scilicet vera juris fundamenta, quibus universum juris fastigium innititur. Sunt fontes e quibus, veluti per canales et rivulos, just educitur. Sunt semina, quae procedente proficienteque judicio usuque, in ramos sese postea quam latissime diffundunt et explicant: sunt scintillae σπινθήρεσ quibus mens ubique collustratur: sunt penora condita et thesauri e quibus propositarum quaestionum desumi debent: sunt claves quibus adyta juris reserantur; sunt denique cynosurae in vastissimo Oceano navigantibus propositae.”
006. “Per molti si può dire che lo studio della giurisprudenza si reduce allo studio dei precetti legislativi e delle cosiddette regole del diritto senza sottoporle ad un sistema. L’autorità che ad esse dà il tempo e la forma energica ed originale che ebbero da coloro che primi le espressero, la facilità di accogliervi per diritto o per traverso buon numero di casi e di ritenerle a memoria, hanno fatto sì che tali regole, anche se non abbiamo in sè stesse che un’importanza assai secondaria, sono state scambiate coi principii; e basta avere un pò di pratica degli scrittori e delle decisioni dei magistrati, per rimanere convinti come voglia farsi di esse un uso, che punto conferisce alla guista soluzione delle questioni. Bisogna confessare che le illusioni intorno a siffatte regole hanno sopraffatto anche i miglori. E quante decisioni assurde, quanti guidicati iniqui non hanno il triste pregio di essere motivati con una di queste regole di diritto?”
007. “Elles sont des ressources dangereuses de mnemotechnie et rien de plus … Elles ne peuvent guère échapper au reproche ou d’ètre inexactes dans la forme, ou de constituer de pour cercles vicieuses.”
007. “I dittèri giuridici, per avere una forma più generale del loro contenuto, tentano di essere applicanti più estesamente di quello che dovrebbesi; avendo in sè stessi il peccato originale di violare quella legge dell’induzione logica per la quale una verità non può dominare in un territorio più grande di quello dei fatti cui fu indotta.”
008. “Le regole non presentano che argomenti ingannevoli e leggeri, i quali dovranno perciò essere accolti con gande circospezione, solo gl'inesperti fanno grande ed incondizionato uso delle regulae juris che scambiano per veri principii, non avvedendosi che, mercè di esse, arrivano talora alle conseguenze più assurde.”
008. “In primo luogo la R. di D. non è una esplanazione del diritto esistente. Essa non può contraddire a quella che è ricevuta come norma obbligatoria per tutti i cittadini siccome jus. E ciò perchè la regula juris non è fonte di diritto, non ha virtù e missione di introdurre nuove norme giuridiche. La funzione sua propria è limitata a dichiarare in modo conciso il diritto già costituito.
In secondo luogo la R. di D. non è una esposizione di principii puramente dottrinali; essa cioè non rappresenta se non il prodotto della operosità scientifia dei giureconsulti. La regola per quanto maestrevolmente redatta, non avrà che un’autorità puramente riflessa, un’autorità in ordine alla quale rimarrà sempre aperta la discussione.
In terzo luogo, secondo la definizione di Paolo la regola è una breve esposizione di una massima di diritto—breviter enarrat—… Senza il requisito della brevità la regola perderebbe la sua natura ed il suo scopo; essa si convertirebbe in una dissertazione scientifica.”
009. “Regula juris est sententia quaedam generalis, quae ex plurium legum mente a Jureconsultis notata atque animadversa, paucis verbis summam earum consensionem et tamquam armoniam complectitur. Differt autem lex a regula: quod illa dicitur quam populus certo et cognite omnibus jure constituit: regula vero, quam jurisconsulti ex pluribus legum capitibus notatis inter se atque comparatis elicuerunt; ut nos omnino docere possimus, leges esse tamquam voces et tonos singulos: regulam esse tamquam armoniam et concentum.”
009. “Omnis regula juris civilis lubrica est et periculosa, non certa, non necessaria, non perpetua, quia vitiatur et corrumpitur facile.”
009. “Allorchè pertanto ci si presenti l’occasione di applicare una regola, occorre stare in guardia contro il fascino che potrebbero esercitare i termini generali nei quali esse è concepita. Non si deve dimenticare che la regola, quando anche sia esattamente formulata, rispecchia soltanto lo spirito, il contenuto di un determinato ordine di disposizioni giuridiche e che, di conseguenza, ha in sè un campo di azione limitato e non, eccedente quella determinata parte del diritto che esa intendeva abbracciare. Farà quindi mestieri di preliminarmente esaminare se il caso concreto sia compreso entro la sfera legislativa dalla quale la regola venne estratta, e se, dato questo presupposto, una qualche particolare limitazione non renda per avventura irrita nella specie l’applicazione della regola medesima. Su ciò Gotofredo.
'Transitum faciendum esse seu recurrendum ad rem subiectam, ad just seu ad juris speciem, ex qua et ad quam eam regulam commenti sunt et commentati prudentes: denique in regulis juris perpetuo quaerendum undenam seu ex qua materia desumptae sint, suos ut ad locos referantur, ut ita congruent inter se regulae seu praecepta et experimenta.'
È dunque uno strumento utile di lavoro che, beninteso, reclama in chi lo maneggia abilità e delicatezza; dato ad un imperito, porterà più danno che utile.”
011. “Quia non est novum ut quidquid expressim propositum est ad regulam reducatur, quae compendiosa narratione omnia diffusive tradita comprehendat, ita dominus noster Summus Pontifex videlicet Dominus Bonifacius Papa VIII, lex mundi, regula morum, Ecclesiae doctor, juris illuminator, post praecedentes tractatus, posuit titulum de regulis juris, in quo, sub brevitate verborum, collegit ea quae in aliis partibus juris per verba plura et varia dissereuntur confuse.”
012. “Omnis juris pars in regulis traditur, si regulas recte compositas asseris; quo fit ut si breviter omnis juris partes velis adnotare, hoc nullo modo nullove praetio careas; quod si feceris, summos fructus in dies recipies.”
015. “1) Qualiter regula diffiniatur. Regula est quae rem quae est breviter enarrat id est jus aliquod in variis partibus juris constitutum breviter recitat. Ex. Pisces sunt primi occupantis quia nulli pertinent: ita lapides littoris ob eamdem rationem, ita bestiae silvarum, aves etc. Ex his casibus particularibus deducitur regula: ‘quod nullis in bonis est, id naturali ratione occupanti concedatur’ (ut D. De acquir. rer. dom. 1. III in pri.).
2) Qualiter regula constituatur. Regula debet esse generalis et omnia comprehendere, quia constituitur per ea verba quae de sua natura omnia comprehendunt, sive per verba affirmantia aut negativa vel indefinita, dummodo ad obiecta omogenea referantur.
3) Quae sit potestas regulae: hoc est utrum regula constituat jus de novo vel solum recitet alterum constitutum. ‘Non ut ex regula jus sumatur, sed ex jure quod est regula fiat.’ Generatim ergo regula non constituit normam legis, at Dinus excipit quosdam casus: ‘Quidam sunt casus in quibus eadem est aequitas quae est in casibus jure determinatis, nec tamen reperiuntur in jure positi et in illis regula facit jus propter identitatem rationis quae non patitur determinationem casuum similium esse diversam. Aptius autem dici posset quod ut constitutio juris praecedit traditionem regulae, et regula de jure constituto, quasi numeratum de materia producatur, et tunc locum habet distinctio praedictorum casuum: inde licet ut jam determinatis et exceptis non faciat jus. Sed in non determinatis, in quibus eadem est ratio aequitatis, faciat seu constituat jus. Sed ubi non est jus constitutum ante regulae traditionem sed invenitur sola stipulatio ex traditione regulae, tunc ipsa regula est jus seu constitutio juris et non ab alio sed a constitutione procedit.’
4) Quod sit officium regulae. ‘Regula est coniunctio rationis. Ideo quod de ratione plurium casuum eamdem rationem habentium unam numero generalem traditionem facit. Et sic quae plures erant primo, numero rationes, ad unam ex omnibus coniunctius praecedentem reducentur per regulam. (Ex. g. Pisces, lapides, aves sunt universorum quia nulli pertinent).
5) An exceptiones intelligantur esse de regula. Duae adsunt sententiae contrariae. Jannes Andreae negat, Placentinus affirmat, quia ‘semper specialia generalibus insunt’ necnon quia dicitur exceptiones regulam confirmare. Opinio Dini est media, nempe juxta illum utraque opinio est partialiter vera. Vere dicit Jannes Andreae exceptiones eximi a regula: sunt tamen in regula eo sensu quod haec valet in omnibus casibus in quibus peculiares rationes non cadunt.’”
024. “Accedunt ad canones in extrema quaque pagina, notae quae varios indicant fontes unde ii eliciti sunt: qua in re vix animadvertere attinet canones haud semper cum suis fontibus omni ex parte in sententia congruere. Quod praecipue de canonibus poenalibus libri V intelligatur dictum, ubi antiquae leges poenales allegantur, quamvis poenae quas adnexas habent a poenis in novis canonibus sancitis saepe discrepent.”
059. “Inter litigatores debet judicii aequitas observari, sive litigatores sunt pares, quia uterque vilis, vel uterque conditionis honestae sunt, sive non pares, quia unus vilis conditionis alter constitutus in dignitate; nec debet judex, praetextu dignitatis alicuius litigatoris, praetextu lucri, vel gratiae, vel odii in alteram partium declinare, sed utrique parti quod justum est praestare et jus suum unicuique tribuere et aequitatem in omnibus observare.”
062. “Non basta dunque che il giudice sia di buona coscienza; prima di esaminare le ragioni, si ha da esaminare il cuore, per vedere se vi s’annidasse qualche leggero impulso di desiderare, e di trovar più buone e stringenti le ragioni dell’una che dell’altra parte. Ed oh! quante ve ne possono essere! Ed essendovi, non si può dire che leva non osservata lavori dentro nell’uomo per muoverlo in favore dell’una delle parti! Allora insensibilmente e senza avvedersene, chi dev’esser Giudice comincia a divenire avvocato della parte a cui è più portato l’affetto. Allora anche le ragioni deboli prendono aria di vigorose in un intelletto, che a cagione della mal conosciuta passione, non si trova nell’equilibrio in cui dovrebbe essere. Anzi va egli cercando nel magazzino del suo sapere alter ragioni, altri amminicoli, per poter pure con bastevole fondamento determinarsi per quella parte. E vi si determina infine con la coscienza quieta, perchè non discerne ruota alcuna che internamente l’abbia spinto, fuorchè le ragioni a sentenziare così.”
062. “Non si può dire quanto poco ci voglia a torcere il giudizio nostro, qualora entri nel giudicare qualche minuta, nonchè minuscola passione. Buona parte delle liti si riduce quasi ad un punto indivisibile. Dall’una parte buone ragioni, dall’altra ragioni buone. S’ha da determinare il Giudice. Pochissimo manca perchè egli inclini verso l’una o verso l’altra parte. Quello che facilmente il può far risolvere, può essere una delle segrete passioni suddette, una raccomandazione o qualche consiglio dell’amor proprio che stende purtroppo la sua giurisdizione sopra tutte le operazioni nostre. Torno a dire indifferenza, indifferenza nei Giudici. Chi non ha petto non si metta a fare il Giudice.”
064. “Adiuva me (Domine) ne vana spe animabus coniugum subveniendi deceptus, animam ipsam meam in discrimen adducam, si tanti Sacramenti religioni detraham, nullum declarando matrimonium etsi vel unum prudens dubium eius validitatis supersit. Deus, qui corda nosti hominum, licet Te solum prae oculis habere rectamque animo intentionem fovere mihi videar, digneris tamen, quaeso, me a qualibet inordinata propensione vel aversione in latebris spiritus mei forte latescenti liberare, ne a veritatis et justitiae semita, vel inscius, deflectam.”
072. “Pone quod promisisti dare bovem in kalendis Augusti, si non dares promisisti dare centum nomine poenae; decedens ante kalendas Augusti heres, ignorans promissionem, pactum non solvit. Dubitum est an possit cum effectu conveniri ad poenam. Et respondetur quod non, quia habuit justam ignorantiae causam.”
096. “Si quis asserit se juris peritum, cum canonici et civilis juris sit ignarus, et pretextu assertionis fuerit assumptus in judicem et per impericiam male judicavit, videtur fuisse in culpa quod se immiscuit rei ad se non pertinenti. Idem dico de eo qui se asserit medicum cum medicinam ignorat: idem de quolibet artifice asserente se peritum, cum imperitus sit, quia culpa est immiscere se rei ad se non pertinenti.”
126. “item si plures habent servitutem aquae ducendae ex eodem fonte et dominus velit concedere alii cum deminutione juris primorum, non poterit sine consensu primorum. Alias si jus primorum non constitueretur deterius non requireretur eorum consensus.”
126. “Sed oppono quod sufficiat consensus majoris partis. Sed facilis est solutio quod in eo quod commune est pluribus ut universis statur voluntati majoris partis, in eo vero quod est commune pluribus ut singulis requiritur singulorum consensu.”
155. “Par est ut quibus diebus a carne animalium abstinemus, ab omnibus quoque quae sementinam carnis habent originem jeiunemus.”
156. “Duae sunt regulae quae videntur aequipollere per omnia. Prima, cum quid prohibetur, prohibetur et omne id per quod pervenitur ad illud. Secunda est cum quid prohibetur, prohibetur omnia quae sequuntur ex illo. Verbigratia de primo si prohibetur matrimonium inter aliquas personas, videntur prohibita sponsalia per quae pervenitur ad matrimonium. Item de secundo prohibetur venditio fundi dotalis, et ideo si vendatur et tradatur, traditio quae ex venditione sequitur videtur prohibita, et propterea dominium non transfertur. Item prohibetur alienatio rei ecclesiasticae non servata solemnitate quae a jure statuitur. Et ideo si venditur et traditur, dominium non trasfertur, imo ipse praelatus vel oeconomus ad vidicandum admittitur.”
165. “Infallibiliter locum habet regula in illis qui contradicendo poterant impedire quod agebatur. In fideiussore a tutore nominato, qui patitur nomen suum scribi in actis et non contradicit, quod videtur consentire et per solemnem stipulationem se obligare: idem in eo qui, se praesente, rem suam patitur obligari et non contradicit, quod consentire videtur. Idem generaliter qui patitur alium experiri de jure ad se pertinente.”
167. “Profecto misera foret hominis conditio si quis cuivis interroganti affirmando vel negando positive respondere teneretur, cum saepissime intersit tacere et nil respondere, sicque medium inter negationem et confessionem tenere.”
187. “Praeterea si habeat superflua vasa, cum debitrix sit, nec aliunde solvere valeat, ne quid immobile alienetur vel distrahatur, ea integra vel aliis locis venerabilibus oblata dentur vel conflata aliis vendantur.”
197. “Nonnisi ad subeunda et sustinenda onera, pericula, incommoda plerumque movemur, quia speramus et expectamus inde provenientia commoda atque emolumenta; quod attendens S. Paulus ad sufferenda pro Christi nomine adversa suos ipse secuturi emolumenti est hortatus (2 Cor. I: 7): Sicut socii passionum eritis sic eritis et consolationis, dignus est enim operarius mercede sua. Tum quia nisi sustinentes onera, incommoda et labores sequerentur etiam commoda, melior foret conditio negligentis quam operantis, ac nemo esset qui vellet subire onera et labores non sine humani commercii praeiudicio.”
299. “Regulae Cancellariae sunt quaedam Apostolicae Constitutiones, quas Pontifex initio sui pontificatus circa causas beneficiales et judiciales facere, vel a praedecessoribus suis jam factas, juxta occurentium causarum varietatem, renovare, augere vel minuere consueverat. Primus omnium qui Regulas Cancellariae, sive leges ad Cancellariam tulit, easque scripta redegit est Johannes XXII. … Ipsae autem Regulae Cancellariae successu temporis in pluribus fuerunt mutatae atque augmentate vel magis declaratae.”
300. “Dominus Noster decrevit et declaravit suae intentionis fore quod deinceps per quamcumque signaturam, seu concessionem aut gratiam vel Litteras Apostolicas pro commissionibus seu mandatis aut declarationibus huiusmodi, etiam motu proprio et ex certa scientia, ac etiam ante motam litem a Sanctitate Sua emanaverint, vel de eius mandato faciendas nulli jus sibi quaesitum quomodolibet tollatur."
300. “Item idem D. N. ut finem litibus imponatur celerius, et litigantium parcatur sumptibus et expensis, suorum Praedecessorum Constitutionibus et Statutis inhaerendo, statuit et ordinavit quod in causis pendentibus, et quas in posterum contigerit agitari, nulli ante definitivam sententiam liceat appellare, nec appellatio, si fuerit emissa debeat admiti, nisi ab interlocutoria quae vim habeat definitivae, vel a gravamine minime concernente negotium principale, quod non possit per appellationem a definitiva sententia reparari.”
301. “Voluit quod in litteris dispensationis super aliquo gradu consanguinitatis vel affinitatis aut alias prohibito, ponatur clausula, Si mulier rapta non fuerit.”
301. “Voluit quod in dispensationibus super defectu natalium, quod possint succedere in bonis temporalibus ponatur clausula: ‘Quod non praejudicetur illis ad quos successio bonorum ab intestato pertinere debeat.’” |
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Citations for ecclesiastical documents used by Bartoccetti |
• Pius XII (reg. 1939-1958), ap. con. Vacantis Sede Apostolica (8 dec 1945), AAS 38 (1946) 65-99, Eng. trans, here.
• Sacred Congregation for Sacraments (Jorio), instr. Provida Mater Ecclesia (15 aug 1936), AAS 28 (1936) 28-313, Eng. trans., Canon Law Digest II: 471-530.
• Sacred Cong. Consistory (de Lai), decr. Maxima cura (20 aug 1910), AAS 2 (1919) 636-648.
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Staging |
The Corpus Iuris Civilis originally consisted of three components, the Code (issued in 529 but replaced in 534, consisting of thousands of excerpts of Roman legislation), the Digest, also known as the Pandects, (issued in 533 consisting of juristic comments and sayings by some half-dozen renowned Roman jurisconsults), and the Institutes (also issued in 533, consisting largely of Gaius’ classical textbook on Roman Law). A fourth component, the New Laws (often referred to even in English treatments of Roman Law as the Novellae) appeared over the following decades and consisted of later legislation. The three original components of the Corpus had, or were immediately given, juridic force by Justinian. Within the Corpus two components, the Code (in its 534 form, the 529 version being lost after it was replaced by the second edition, which was organized into twelve books, most of which books consisted of numerous individual legislative provisions) and the Digest (which was organized into fifty books, each of which books was subdivided in titles in turn consisting of numerous individual assertions or lines by jurisconsults) are of special interest to students of the canonical Rules of Law. Among these pertinent materials the 211 once-scholarly, now-binding, assertions or lines presented in title 17 “On various ancient rules of law” of Book Fifty of the Digest, which material, as it happens, ends the Digest, hold pride of place.
https://en.wikipedia.org/wiki/Samuel_Parsons_Scott
At present scholars of Roman Law regard Paul Krüger's version of the The Institutes (1867) as the most accurate. It is available here.
Several English translations of the Institutes are available.
The first complete English translation of the Institutes was produced by Samuel Parsons Scott and published posthumously in 1932. Notwithstanding the criticisms visited upon Scott’s work (resting as it does on flawed Latin versions of the Corpus) it is worth consulting and can be found here.
§
Comment:
Su cui v. L. Elia, Una testimonianza in Vittorio Bartoccetti, l’uomo, lo studioso, il sacerdote, Atti dell’incontro tenutosi nella Sala S. Michele di Fano il 31 ottobre 1985 a cura dell’Istituto marchigiano J. Maritain di Ancona, Ancona, Editrice “La Lucerna”, pp. 41-46.
https://www.amazon.com/Specimen-Juridicum-Inaugurale-Regulam-Juris/dp/101136350X
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Master List of the Bonifacian Rules of Canon Law
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01. Beneficium ecclesiasticum non potest licite sine institutione canonica obtineri. An ecclesiastical benefice cannot be licitly obtained without canonical institution.
02.
03.
04.
05.
06. Nemo potest ad impossibile obligari. No one can be bound to the impossible.
07. Privilegium personale personam sequitur et extinguitur cum persona. Personal privilege follows the person and is extinguished with the person
08. Semel malus semper praesumiter esse malus. Who is evil once is presumed always to be evil.
09.
10.
11. Cum sunt partium iura obscura reo fovendum est potius quam actori. When the rights of the parties are obscure the defendant should be favored rather than the accuser.
12.
13. Ignorantia facti non iurii excusat. Ignorance of fact, but not of law, excuses.
14. Cum quis in ius alterius succedit iustam ignorantiae causam habere censetur. When one succeeds to the rights of another he is thought to have a just reason for ignorance.
15.
16.
17. Indultum a iure beneficium non est alicui auferendum. A benefice granted by law should not be turned over to someone else.
18.
19. Non est sine culpa qui rei quae ad se non pertinet se immiscet. He is not without fault who immerses himself in things not pertaining to himself.
20. Nullus pluribus uti defensionibus prohibetur. No one is prohibited from using several defenses.
21. Quod semel placuit amplius displicere non potest. What pleased once cannot displease later..
22. Non debet aliquis alterius odio praegravari. One must not be burdened because of the hatred of another.
23.
24. Quod quis mandato facit iudicis, dolo facere non videtur, cum habeat parere necesse. What one does by mandate of the judge, he is not seen to do from malice, because he must obey of necessity.
25. Mora sua cuilibet nociva est.One’s own delay is harmful.
26. Ea quae fiunt a iudice si ad eius non spectant officium non subsistent. Those things done by a judge, if they do not pertain to his office, do not exist.
27.
28. Quae a iure communi exorbitant nequaquam ad consequentiam sunt tradenda. Those things that go beyond common law are never brought into effect.
29.
30.
31. Eum qui certus est certiorari ulterius non oportet.It is not necessary to further inform him who is already certain.
32. Non licet actori quod reo licitum non exsistit. What is not allowed to the respondent is not allowed to the petitioner.
33.Mutare quis consilium non potest in alterius detrimentum. No one can change his thinking to the detriment of another.
34. Generi per speciem derogatur.Generalities are diminished by the specific.
35.
36. Pro possessore habetur qui dolo desiit possidere. One who maliciously ceases to possess is considered to be a possessor.
37. Utile per inutile non debet vitiari.The useful must not be vitiated by the useless.
38. Ex eo non debet quis fructum consequi quod nisus extitit impugnare. One must not obtain a benefit from that which one had striven to oppose.
39. Cum quid prohibetur, prohibentur omnia quae sequuntur ex illo.When something is prohibited also prohibited are all things that follow from it.
40. Pluralis locutio duorum numero est contenta. The number two is contained in plural speech.
41. Imputari ei non debet per quem non stat si non fiat quod per eum fuerat faciendum. It must not be imputed to him with whom it does not rest if something was not done that should have been done by him.
42. Accessorium naturam sequi congruit principalis. The accessory is suited to follow the nature of the principal.
43. Qui tacit consentire videtur.One who is silent seems to consent.
44. Is qui tacit non fatetur, sed nec utique negare videtur.One who is silent is not confessing but neither does he seem to deny.
45.
46. Is qui in ius succedit alterius, eo iure quo ille uti debebit. He who succeeds into the right of another must also use the same right.
47. Praesumitur ignorantia ubi scientia non probatur. Ignorance is presumed when knowledge is not proven.
48.
49.
Rule 49. In poenis benignior est interpretatio facienda. In penal matters the more benign interpretation is to be made.
50.
51. Semel Deo dicatum non est ad usus humanos ulterius transferendum. Once something has been dedicated to God it is not also to be given over for the use of men.
52.
53. Cui licet quod est plus licet utique quod est minus. One who is allowed to do more is certainly allowed to do less.
54. Qui prior est tempore potior est iure. Who is first in time is stronger in law.
55.
56. In re communi potior est conditio prohibentis. In common matters the one prohibiting is in a stronger position.
57. Contra eum qui legem dicere potuit apertius est interpretatio facienda. Against him who could more openly pronounce the law should interpretation be made.
58. Non est obligatorium contra bonos mores praestitum iuramentum. An oath offered against good morals does not oblige.
59. Dolo facit qui petit quod restituere oportet eumdem. He acts with malice who demands what he must return.
60. Non est in mora qui potest exceptione legitima se tueri. One is not in delay who can, by legitimate exception, defend himself.
61. Quod ob gratiam alicuius conceditur non est in eius dispendium retorquendum. What as a favor for someone is given should not be turned to his disadvantage.
62. Nullus est consilio, dummodo fraudolentum non fuerit obligatur. No one is liable for advice provided it was not fraudulent.
63. Exceptionem obiiciens non videtur de intentione adversarii confiteri. Raising an exception is not seen as admitting the assertion of the accuser.
64. Quae contra ius fiunt, debent utique pro infectis haberi. Those things done against the law must surely be regarded as null.
65. In pari delicto et causa potior est conditio possidentis. Where there is equal blame or case the condition of the possessor is stronger.
66. Cum non stat per eum ad quem pertinet quominus conditio impleatur, haberi debet perinde ac si impleta fuisset. When it does not rest with the one to whom it belongs that a condition be fulfilled the condition must be considered as if it had been fulfilled.
67. Quod alicui suo non licet nomine nec alieno licebit. What is not licit for one on his own will not be licit in the name of another.
68. Potest quis per alium quod potest facere per seipsum. One can do through another what he can do himself.
69. In malis promissis fides non expedit observari. It is not expedient that faithfulness be observed regarding evil promises.
70. In alternativis debitoris est electio et sufficit alterum adimpleri. When there are alternatives the choice belongs to the debtor and it suffices that either one be fulfilled.
71. Qui ad agendum admittitur est ad excipiendum multo magis admittendus. One who is allowed to make a petition must all the more be allowed to raise an exception.
72. Qui facit per alium est perinde ac si faciat per seipsum. One who acts through another [is regarded] thereafter as if he had acted himself.
73. Factum legitimum retrotrahi non debet, licet casus postea eveniat a quo non potuit inchoari. A legitimate action must not be withdrawn even though a case might arise later by which would not have been allowed to begin.
74. Quod alicui gratiose conceditur trahi non debet ab aliis in exemplum. What was graciously granted to someone must not be used as an example in other matters.
75. Frustra sibi fidem quis postulat ab eo servari, cui fidem a se praestitam servare recusat. In vain does one ask that fidelity be observed toward himself who refuses to observe the fidelity offered by himself to the other.
76. Delictum personae non debet in detrimentum Ecclesiae redundare. The wrong-doing of a person must not redound to the detriment of the Church.
77. Rationi congruit ut succedat in onere qui substituitur in honore. It makes sense that one should succeed in responsibility who is put in the place of another in honor.
78. In argumentum trahi nequeunt quae propter necessitatem aliquando sunt concessa. Concessions sometimes made because of necessity cannot be used as an argument.
79. No one can transfer more right to another than he can claim for himself. Nemo potest plus iuris transferre in alium quam sibi ipsi competere diagnoscatur.
80. In toto partem non est dubium contineri. In the whole the part is no doubt contained.
81. In generali concessione non veniunt ea quae quis non esset verisimiliter in specie concessurus. In a general grant do not come those things that one would not likely to grant specifically under similar circumstances.
82. Qui contra ius mercatur bonam fidem praesumitur non habere. One who bargains against the law is presumed not to have good faith.
83. Bona fides non patitur ut semel exactum iterum exigatur. Good faith does not allow that what was exacted once is demanded again.
84. Cum quid una via prohibetur alicui ad id alia non debet admitti. When one is prohibited something in one way it must not be allowed him in another.
85. Contractus ex conventione legem accipere diagnoscitur. A contract by convention recognizes its own law.
86. Damnum quod quis sua culpa sentit sibi debet non aliis imputare. One must not impute to others a harm that one experiences by his own fault.
87.
88. Certum est quod is committit in lege, qui legis verbum complectens, contra legis nititur voluntatem. It is certain that one works against the law who, while fulfilling the text of the law, strives against the wish of the law.
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Materials on this website represent the opinions of Dr. Edward Peters and are offered in accord with Canon 212 § 3. This website undergoes continual refinement and development. No warranty of completeness or correctness is made. Dr. Peters' views are not necessarily shared by others in the field nor are they intended as canonical or civil advice.
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