THE ENACTMENTS OF JUSTINIAN.
  
THE NOVELS.
~  CXX  ~
CONCERNING ALIENATION, EMPHYTEUSIS, LEASE, HYPOTHECATION, AND DIVERS OTHER CONTRACTS HAVING REFERENCE TO SACRED PROPERTY EVERYWHERE.


 
( S. P. Scott, The Civil Law, XVII, Cincinnati, 1932 ).
 
 
The Emperor Justinian to Peter, Most Glorious Praetorian Prefect of the East.
PREFACE.
  We, having already promulgated many different enactments with regard to alienations, emphyteutical contracts, leases, and other agreements relating to the administration of ecclesiastical property, now deem it proper to combine all these matters in the present law.
CHAPTER I.
   
CONCERNING THE ALIENATION AND EMPHYTEUSIS OF ECCLESIASTICAL PROPERTY.
  Hence We order that those who have charge of the property of the Most Holy Church of this Royal City, or that of any orphan asylum, hospital, place of entertainment for strangers, infirmary for poor and sick people, or any other religious establishments situated in this Royal City, or in the territory subject to its jurisdiction (with, however, the exception of monasteries), shall be permitted to sell, give, exchange, deliver by reciprocal donation, or alienate in any manner whatsoever, any immovable property, right to a supply of grain, or rustic slave, unless the exchange is made with the Imperial House, but We do not permit serfs to be legally alienated. We decree that the Most Holy Principal Church of this Royal City, and other religious houses, shall only grant an emphyteutical lease to one who receives it in person and to two of his heirs in succession, and We only release him who is entitled to the property by emphyteutical right from the sixth part of his actual rent. So far as suburban property belonging to the Most Holy Principal Church itself, or to the other religious foundations above enumerated, and which are situated in this Royal City, or in its territory, are concerned, We order that when said property yields a fixed rent as income, it shall be leased in emphyteusis by its managers or stewards to the emphy-teuta, and two of his immediate successors, in the manner above prescribed; and that, instead of the rent being diminished, it shall, on the contrary, be increased. But where such suburban property returns absolutely no income, We permit the administrators of religious houses to transfer them by emphyteusis (as previously stated) for any amount of rent which they may decide upon.
  (1) Where any property whatsoever, which has been leased in emphyteusis by a religious house, is transferred to the Imperial Domain, to Our Treasury, to a city or a curia, or to any other religious establishment, We permit the administrators of the religious house by which the emphyteusis was granted in the beginning to state within two years after the date when the emphyteusis was made to one of the aforesaid establishments, whether its intention is for the property thus leased to be left in the hands of those who have possession of it, with the understanding that they shall pay the annual rent mentioned in the agreement, or whether they wish to cancel the lease and take back the said property for the reason that they are of the opinion that this will be the more advantageous course to pursue.
  (2) Where, however, there are any places belonging to the Most Holy Principal Church, or to any other religious establishment on which are situated ancient buildings which have been abandoned, and which do not yield any income, and the religious establishment owning said buildings cannot repair them, We grant permission to their superintendents to lease them in perpetual emphyteusis, provided, however, that the emphyteutical rent shall amount to a third of the sums formerly collected, when the said buildings were in good repair; or, if the emphyteuta should prefer to do so, he shall receive the ruined houses under an agreement that he will begin to build, and will pay to the venerable religious house, from which he received the emphyteusis, half the rent which the building would yield after an appraisement of the same has been made. We permit this to be done, and also authorize an emphyteuta of this kind to make use of any materials forming part of the abandoned habitation.
CHAPTER II.
   
WHERE ANYONE DESIRES TO ACQUIRE THE USUFRUCT OF PROPERTY
BELONGING TO A CHURCH.
  When anyone desires to obtain the usufruct of immovable property belonging to the principal church of this Royal City, or to one of the religious establishments which We have mentioned in the preceding chapter, he shall not receive it, unless he immediately transfers the ownership of other property, not burdened with heavy fiscal charges which yields an income equal to that which is to be given to him. After his death, or after the time agreed upon for the enjoyment of the usufruct, which must not exceed the life of him who receives it, has elapsed, the title to both pieces of property shall absolutely vest in the same religious house, so far as the usufruct and ownership of the same are concerned.
CHAPTER III.
   
IT SHALL BE PERMISSIBLE TO LEASE ECCLESIASTICAL PROPERTY
FOR NOT MORE THAN THIRTY YEARS.
  We grant permission to religious establishments to make contracts for leases for any term the contracting parties may choose, provided, however, it does not exceed thirty years.
CHAPTER IV.
   
IT SHALL BE PERMITTED TO ENCUMBER IMMOVABLE ECCLESIASTICAL PROPERTY
BY GIVING IT IN PLEDGE.
  If, however, any one of the aforesaid religious establishments should require money for the payment of taxes to the Treasury, or for any other necessary purpose, its managers shall have the right to hypothecate a piece of immovable property, or give it in special pledge, the creditor shall hold possession of the same and harvest the crops, and he must credit their value upon the sums due to him, as well as by way of interest, which, however, cannot exceed three per cent. But where those having charge of the affairs of the said religious establishment discharge the debt, or it is paid out of the income of the property given in pledge, the said property shall be returned to the religious establishment which encumbered it.
CHAPTER V.
   
CONCERNING THE EMPHYTEUSIS AND HYPOTHECATION OF ECCLESIASTICAL PROPERTY.
  We desire that emphyteuses and hypothecations made for a term exceeding five years, and which are contracted by the Holy Principal Church of this City, shall be executed with the approval and consent of the Most Blessed Archbishop and Patriarch of this Most Fortunate Capital and in the presence of the venerable stewards and chartularies of the Holy Principal Church, who shall make oath that the contract was not entered into for the purpose of defrauding the church of its rights. Where there are chartularies in any of the other religious establishments, they, also, shall be sworn in the same way before the head of the said religious house. When there are none, the contract shall, in the presence of the Holy Gospels, be committed to writing by those in authority, who shall add to it the oath setting forth that no injury or fraud is committed against the said religious house.
  (1) We forbid stewards, superintendents of orphan asylums, and others having charge of religious establishments, as well as all chartularies, their parents, children, and others related to them by the ties of blood or marriage, to accept in person, or through the intervention of another, an emphyteusis, lease, or hypothecation of property belonging to any of the said religious houses; and they are hereby notified that if anything of this kind should be done it will be void; and We order that all the property, not only of those who accept such a contract, but also that of the stewards, chartularies, or superintendents with whom they were implicated, shall, after their death, pass to the religious house from which they accepted the emphyteusis, the lease, or the hypothecation.
CHAPTER VI.
   
CONCERNING THE PROPERTY OF OTHER CHURCHES
SITUATED OUTSIDE THE CITY OF CONSTANTINOPLE.
  We have laid down the preceding rules concerning matters in which the principal church, and the other religious houses of this Royal City or its environs, are interested. We now deem it advisable to prescribe the following regulations for the other holy churches, monasteries, places of entertainment for strangers, hospitals, and other religious establishments situated in all the provinces of Our Empire, as well as for the monasteries in this Royal City and its adjacent territory.
  (1) Therefore We permit the religious establishments aforesaid to transfer property belonging to them, not only by temporary emphyteusis, but also, if they so desire, by perpetual lease. When these are holy churches or other religious houses which the most holy bishop of the diocese governs in person, or causes to be administered by a holy choir of the clergy, the emphyteutical contract shall be made with their knowledge and consent; and the stewards, managers, and chartularies of the religious house shall swear in the presence of the bishop, or of the said holy choir of the clergy, that the emphyteusis will not be productive of any loss to the said religious house. Where asylums for poor and infirm persons, or any places of entertainment for strangers, hospitals, or other religious establishments subject to private administration, or any sacred oratories, lease property by emphyteusis, the contract shall be made with the consent of the majority of the ecclesiastics who have charge of the same, as well as with the approbation of the steward. And where this is a place of entertainment for strangers, as asylum for poor and infirm people, a hospital or some other establishment of this kind, the contract shall be drawn up in the presence of the official in charge; and the managers of the said house shall make oath in the presence of the holy bishop by whom they were appointed or ordained that the said religious house can suffer neither injury nor fraud through the execution of such a contract.
  (2) But so far as the holy monasteries are concerned, their heads, together with the majority of the monks attached to them, must draw up the contract. We decree that, in all preceding cases, the instrument shall include the oath that no injury or fraud against the rights of the monastery is contemplated. The formalities hereinbefore mentioned having been complied with, the emphyteuta shall net be released from the payment of more than the sixth part of the income yielded by the property given in emphyteusis. We order that all that We have above prescribed with reference to buildings belonging to religious houses situated in this Royal City, which have fallen into decay, shall be applicable to such buildings when they belong to religious establishments situated in the provinces. We also think it proper to state with reference to the latter that where any of them are oppressed with debts, either on account of public obligations, or for some other urgent reason, and it is not possible for them to release themselves from liability by the disposal of movable property, land shall at first specially be pledged to the creditor, in order that he may take the crops of the same, and credit the proceeds upon the sums which he has loaned, as well as the interest which cannot exceed three per cent. But where the creditor is not willing to be paid in this way, We decree that those who are subject to the authority of the most holy patriarchs, that is to say, the most holy metropolitans and other bishops, archimandrites, superintendents of orphan asylums, hospitals, and places for the entertainment of strangers, and the heads of other religious establishments, shall draw up their emphyteutical leases in the presence of the most holy patriarch by whom they have been ordained or appointed; that the said instruments shall be confirmed by their oaths, and with the consent of the majority of the clergy; that the officials in charge must state the amount of the indebtedness, and testify that it is impossible to discharge it by the sale of movable property; and those of the clergy who are ordained by the most holy patriarchs, that is to say, the metropolitans and other bishops, the archimandrites, the superintendents of orphan asylums and of institutions for the poor and infirm, and the heads of other religious establishments, shall execute instruments of this kind before the said metropolitan bishops, and they shall be drawn up in the same way by bishops who have been ordained by the patriarchs or metropolitans, and are under their personal jurisdiction, and the heads of monasteries, asylums for the poor and infirm, places of entertainment for strangers, hospitals, or other establishments of this kind; provided, however, that when these instruments are executed in the presence of the patriarchs, the metropolitans, or other bishops, the said religious establishment shall not be subjected to expense of any kind. For We decree that, for the future, emphyteutical contracts shall be executed gratuitously by the persons or houses that We have just mentioned, in the presence of the provincial judges, or the defenders of districts. After what has been above stated has taken place before the most holy patriarchs, metropolitans, or other bishops, notices shall be posted for twenty days in a public place of the town by those having supervision of the religious house which has contracted the debt, and then anyone desiring to buy the immovable property must appear, and he who will give the most for it shall be preferred to the others. These formalities having been complied with, the sale shall be concluded, and the purchase-money entirely employed for the payment of the debt, for unless this is done, the purchaser will not legally be released from liability; and, finally, it must be expressly stated in the instrument that there is no intention to defraud the religious house. If, after the above-mentioned requirements have been observed, and no purchaser can be found for the property, We direct that the creditors of the aforesaid religious houses shall receive, by way of payment, the property offered for sale in accordance with a just and exact appraisement of the same. The tenth part of said appraisement shall be added to the price; the property transferred by way of payment to the creditor shall be of the same value as his claim; the absolute ownership of the same shall vest in him; and the managers of the religious establishment and the majority of the ecclesiastics attached to it must give their consent to sales of this description. The immovable property given in satisfaction of the debt shall not be selected by the creditor, but the choice shall be equitably made; part of it shall be composed of land yielding an income, and part of the land which is barren, and belongs to the same religious house; and the appraisement of both pieces shall be made in accordance with the income they return, the amount of the indebtedness to the Treasury, and other considerations.
  (3) If, however, anyone has loaned, or shall hereafter loan money to the bishop, steward, or head of any religious house whatsoever, situated in this Royal City, or in the provinces, We decree that he shall not be held to have loaned it to the said religious house, if he does not, in the first place, show that the authorities have borrowed it for its benefit; that they are not heirs of the creditor of the said religious house; that they have no right of action against it; and that the sums lent have been employed for its benefit; otherwise, the creditor must bring suit against the person who received the loan, or his heirs.
CHAPTER VII.
   
CONCERNING THE EXCHANGE OF ECCLESIASTICAL PROPERTY.
  We order that, with the exception of the Most Holy Principal Church of this Royal City, and the orphan asylums, the houses for the entertainment of strangers, as well as the hospitals for the relief of poor and infirm persons which, situated in this Royal City, are under the jurisdiction of the Principal Church, all most holy churches, religious establishments, and monasteries situated both in this Capital and in the different provinces shall be permitted to exchange property with one another; provided that reciprocal indemnity in favor of each house exists, and that the consent, not only of the heads of these houses, but also of the majority of the clergy attached to them, shall be either set forth in writing, or publicly stated. We do not permit any articles which have been transferred from the Imperial Domain to any religious establishment whatsoever, or which may hereafter be transferred, to be sold, pledged, exchanged, or alienated, even when such contracts are made with other religious establishments.
  (1) But as We have ascertained that alienations of monasteries have even been made by certain persons, for the purpose of conveying them to private individuals without regard to their sacred destination, We absolutely forbid this to be done. Where, however, an act of this kind is proved, We grant permission to the most holy bishop of the diocese to recover said monastery, and restore it to its former condition. If, however, any of the aforesaid religious houses situated in this Royal City, or in any of the other provinces (with the exception of the Most Holy Principal Church of this Royal City), should have a tract of land owing a large amount of taxes to the Treasury, from which land it receives no income, We authorize those having the administration of the said religious house to alienate this land in any way that they may desire; but public instruments must be drawn up for the security of the religious house by those who have appointed or ordained its managers, and the latter shall swear on the Holy Scriptures, in the presence of the superior of the religious house, and the majority of the clergy attached thereto, that the alienation is not made through treason, favor, or fraud, but for the benefit of the said religious house. We forbid the stewards and administrators of the clergy, the chartularies of religious establishments, no matter where they may be located, their parents, children, and those to whom they are related by the ties of consanguinity or marriage, to execute in their own proper person, or by someone acting for them, any contract of lease, emphyteusis, purchase, or hypothecation, relating to immovable property belonging to the said religious houses, just as We forbid this with reference to similar establishments situated in this Royal City.
CHAPTER VIII.
   
WHERE THE EMPHYTEUTA OF THE CHURCH DOES NOT PAY HIS RENT FOR TWO YEARS.
  If the lessee, or emphyteuta of land belonging to the Most Holy Principal Church, or to any other religious establishment situated within Our Empire, permits the property which he has received, or may hereafter receive, according to the terms of this constitution, to become deteriorated, or if he fails to pay the emphyteutical rent, or what he promised, for two years, We grant permission to the religious house, which made the emphyteusis or lease, to collect the rent which is due, as well as to restore the property leased or given in emphyteusis to its former condition, and to eject the emphyteuta or lessee, without his being able to demand anything from the religious house on the ground of improvements. When the persons having charge of the matter do not wish to eject him, We decree that they shall collect whatever is known to be due under the lease or emphyteusis, and that the said lessees or emphyteuta shall then keep the land which he has rented until the term fixed for the duration of the lease has expired, and that he shall pay everything which has been agreed upon. If, however, the emphyteuta or lessee should take to flight, We grant permission to the heads of the religious house to obtain from his private property sufficient to indemnify the establishment of which they have charge, without the emphyteuta being allowed to claim anything for improvements.
CHAPTER IX.
   
CHURCHES SHALL BE PERMITTED TO ALIENATE IMMOVABLE PROPERTY
FOR THE PURPOSE OF REDEEMING CAPTIVES.
  We authorize the most holy churches of the cities and their stewards to alienate their immovable property for the ransom of captives, provided that the said immovable property has not been given to the said churches under the condition that it should not be alienated. We grant the Most Holy Church of Jerusalem permission to sell any houses belonging to it, which are not situated in that city, for a sum not less than the total amount of rent received from them for fifty years; in order that it may use this money to obtain a better revenue. Where, however, any persons have given, sold, or transferred in any other way, or left unproductive lands to any religious house whatsoever, situated either in this Royal City, or in the provinces, We decree that the religious house which has acquired such lands shall suffer no damage, and shall not be oppressed with taxes levied by the Treasury, or in any other way whatsoever; but that all the obligations attaching to said sterile lands shall revert to those who have given them, or to their heirs, who shall also be obliged to take back the said lands and pay to the said religious house out of their private estates an amount equal to the loss which the latter has sustained. Where, however, this loss is due to the fact that certain sums were paid to the said house in consideration of its acceptance of the said sterile lands, We order that it shall acquire the ownership of these sums, and that the lands in question shall, by all means, be returned to whoever donated them or to his heirs.
  (1) With reference to this subject, We order that no necessity shall compel the most holy churches, or other religious establishments situated both in this Royal City and in all the provinces of Our Empire, to purchase barren or fertile lands situated anywhere, in order that they may not run the risk of losing those they have, or of becoming oppressed with debts. Where, however, someone desires to obtain the usufruct of any immovable property belonging to one of the religious houses aforesaid (in accordance with what We have already decreed concerning such establishments situated in this Royal City), he must immediately convey the ownership of other land to the said religious establishment, the revenues of which land shall be equal in amount to those of that transferred to him by the church, and not be subject to heavy fiscal charges. After his death, or after the expiration of the time prescribed for the existence of the usufruct (which, however, cannot exceed the life of the person entitled to it), both pieces of property, including their ownership and usufruct, shall be acquired by the said religious establishment. This is what We order with reference to immovable property.
CHAPTER X.
   
CONCERNING THE SACRED UTENSILS OF ANY CHURCH OR ORATORY.
  We have decreed in general terms, with reference to the sacred utensils belonging to the Most Holy Principal Church of this City or the other holy houses of prayer, no matter where they are situated in Our Empire, that the said utensils cannot be sold or pledged except for the ransom of captives. But where there are several of these in any one of the religious establishments, which are not absolutely necessary for ordinary use, and the said religious house is in debt, and has no other personal property with which it can meet its obligations, We allow it either to dispose of the superfluous articles to other religious establishments which have none, by means of instruments publicly executed, or to melt them, and then sell the metal, using the price for the discharge of the debt, in order to prevent immovable property from being alienated.
CHAPTER XI.
   
TO WHAT PENALTY PERSONS WILL BE LIABLE
WHO VIOLATE THE PRESENT CONSTITUTION.
  If, however, in contravention of the present law, a contract should be made with reference to movable or immovable property belonging to one of the religious establishments aforesaid, the property which is the subject of the contract shall be returned to the said holy church or religious house, together with the income of the same which has been collected in the meantime; and it shall retain the price paid, or the reciprocal gift or whatever was, by way of consideration, donated in exchange. Where an emphyteusis is executed in violation of what We have just ordered, We direct the property transferred by the same to be returned to the most holy church or religious house whose interests are involved, that the rent shall be paid in accordance with the agreement, and that the lease shall terminate, just as if the time specified by the emphyteutical contract had expired. When a donation of ecclesiastical property belonging to a church or any other religious house is made, it shall be returned to the Most Holy Principal Church, or other religious house, together with the income received during the existence of the donation; and the donee shall, in addition, pay a sum equal to the value of the property given. When a contract of hypothecation is entered into in violation of this law, the creditor shall lose everything due to him, the property hypothecated shall be returned to the religious establishment, and the notaries who, in opposition to this law, have been so bold as to use their authority for such a purpose, shall be condemned to perpetual exile. Where a contract of this kind has been made in compliance with the ancient constitutions, in existence before the enactment of this law, it shall remain in full force. We, however, decree that all instruments which have been drawn up in contravention of the ancient laws shall be annulled, that the articles transferred in violation of their provisions shall be restored to the religious establishments, that everything done hereafter shall be in accordance with the present law, and that all former constitutions enacted on similar subjects are hereby repealed.
EPILOGUE.
  Therefore, Your Eminence will hasten to cause the matters included by Us in the present law to be observed for all time, and will, with this end in view, publish an edict for ten consecutive days in public places; but no one shall be despatched into the provinces for this purpose, for We desire the said law to be promulgated without Our subjects sustaining any injury.
  Given at Constantinople, on the seventh of the Ides of May, during the reign of the Emperor Justinian, and the Consulate of Basil.