19 July 2021
The institute of the "Family Pact" was born in Italy with the Law of 14 February 2006, n. 55, published in the G.U. of March 1, 2006, n. 50, which introduced the new articles in the civil code. 768 bis to 768 octies, adding a new Chapter V-bis in Title IV of Book II.
The purpose of this new institute is to promote, by valorise the principle of private autonomy, the generational transition of family-type enterprises, thus ensuring their continuity *.
At the same time, the family pact was born on the basis of the recommendation of the European Commission n. 94/1069 of 7 December 1994 “on the succession in small and medium-sized enterprises” **.
From the practical point of view, the transmission of family wealth is realized, pursuant to art. 768a by the conclusion of a contract for the transfer of all or part of the holding or of shares in the company, whether in whole or in part ***.
There are a number of important points that need to be addressed in order to provide a better framework for this contract.
First, as to form, it is the solemn form of the authentic instrument, under penalty of nullity (Article 768 ter).
Therefore, the legislator imposes, the intervention of the qualified figure of the notary.
As for a further formal element, the doctrine still questions whether or not witnesses are needed.
Secondly, it also notes that the transfer from the disposer to the assignee is necessary free of charge.
These aspects bring the family pact closer to donation, but they remain distinct because of its location outside Title V of Book II relating to donations ****.
On the assumption that the family pact is an inter vivos act, the parties involved are necessarily the disposer, owner of the company or of the social holdings, the descendants, assignees of the object of the agreement and the legitimate not assignee, or the spouse *****.
Pursuant to Article 768 quater, first paragraph, in fact, the spouse and all those who would be entitled to participate in the contract should the succession of the entrepreneur be opened at that time.
In this regard, it is good practice to provide the Notary, as a document for the investigation, a copy of the certificate of the family status.
Furthermore, the law specifies that, in order to protect the stability of the arrangement provided for by the pact, what received by the parties to the family pact is not subject to collation or reduction.
L'art. 768 quater, second paragraph, against the allocation made by the farmer in favour of one or more descendants, provides for a liquidation in favour of the persons entitled not to be assigned.
The rule provides that the liquidation of the non-assigned persons shall be carried out by the recipients.
Such liquidation can take place with money but also through the transfer of other rights, such as property rights.
For this purpose, an expert’s report is useful in determining the value of the transferred holding or shares at the time of the conclusion of the family agreement.
The same rule admits, however, that the non-assigned persons may renounce in their entirety and irrevocably the liquidation due to them.
The contract may, finally, be dissolved by the same parties intervened by mutual dissent, that is, by the effect of a subsequent contract, concluded by the same participants in the family agreement, or through the withdrawal, if expressly provided for.
* G. PERLINGIERI, “ Il patto di famiglia tra bilanciamento di principi e valutazione comparativa degli interessi, in Ras. Dir. Civ., 2008;
** D. DAMASCELLI, “Il patto di famiglia' nel diritto internazionale privato”, in Riv. dir. int. priv. e proc., 2007, 3, p. 619 e ss.
*** I.RIVA, “Patto di famiglia", in Commentario del codice civile, 2021;
**** G.OBERTO, “il patto di famiglia”, 2006, p. 62 e ss.
***** F. GAZZONI, “Appunti e spunti in tema di patto di famiglia”, in Giust. Civ., p. 217 e ss.