| Popis: |
Law 55/2006 (entitled “Amendments to the Civil Code dealing with “Patto di Famiglia”), which came into force on March 16th 2006, amended the Italian Civil Code by creating the legal institute of “patto di famiglia”, which aims at allowing the transfer of enterprise or shareholdings during the life of the enterpreurner and entails an exception to inheritance rules. Many interpretative problems arise from the unclear phrasing of the new regulation; among these the most relevant one - both in theory and in practice - relates to the identification of the necessary parties of the “patto di famiglia”, whose defect of consent leads to voidness of the contract. In particular, it is not certain whether the spouse and the persons entitled by law to a share of the deceased’s estate to whom the enterprise and/or the shares are not assigned must participate to the contract. Namely, since the first paragraph of article 768-quater CC, provides that “the spouse and any person who would be entitled by law to a share of the deceased’s estate existing at the time of the conclusion of the agreement must participate to the agreement”, some authors argue that the persons entitled by law to a share of the deceased’s estate should give their consent to the “patto di famiglia”, while, according to others, those have just to be informed of its conclusion. Three theories were formulated with regard to articles 768 bis, 768 quater, paragraph 1 and 768 paragraph 1 CC. According to both first and second theory, the persons entitled by law to a share of the deceased’s estate must be a party to the “patto di famiglia”, however, while according to the former their participation is not essential, for the latter the lack of the participation of the persons entitled by law to a share of the deceased’s estate existing at the time of the conclusion of the agreement makes the contract void. A third point of view assumes the ‘patto di famiglia’ as a special contract for the benefit of third parties: the participation to the contract of any person who is not assignee of the enterprise and/or the shares and would be entitled by law to a share of the deceased’s estate is considered to be required by art. 768 quater CC for a different purpose than the participation of the disposing ascendant and assignee descendant (art. 768 bis). Namely, whilst the presence of the latters is necessary for the validity of the contract, the agreement of the persons who would be entitled by law to a share of the deceased’s estate and are not assignees is required in order to make the agreement enforceable towards them and to convert the share of the testator’s estate reserved by law for certain heirs into the right to receive its monetary value, which has to be calculated considering the enterprise and/or the shareholdings’ value. This paper analyses the matter above and the role of the persons who would be entitled by law to a share of the deceased’s. The research leads to the conclusion that the participation of the persons entitled by law to a share of the deceased’s estate non-assegnees is required for the validity of the contract. The regulation of “patto di famiglia” appears to be inspired by the criterion of the compulsory involvement at law of all persons entitled by law to a share of the deceased’s estate existing at a given time, because of the relevancy of the their interests at stake: far from being considered mere parties of the contract, they must be regarded as essential parties instead, whose consent is necessary for the validity of the “patto di famiglia” (Art. 1418, paragraph 1, of the Civil Code). Therefore, if one of the persons entitled by law to a share of the deceased’s estate cannot or does not want to participate to the agreement, it will not be possibile to conclude the “patto di famiglia” ; instead, the enterprises’s and/or the enterprises shareholdings’ transfer should be guaranteed by using different kinds of contractual agreements. This conclusion also seems to be confirmed by the unsuccessful attempts made to amend the Italian “patto di famiglia” regulation over 2011 and 2012. Namely, all the legislative initiatives providing the amendment of Art. 768, letter d) CC, concerning the “participation” to the ‘patto di famiglia’, layed out the possibility for the agreement to be drawn up also without the presence of all the persons entitled by law to a share of the deceased’s estate. Such proposals seem to confirm the fact that the regulation now in force subordinates the validity of the “patto di famiglia” to the consent of the persons entitled by law to a share of the deceased’s estate. |
