Decree-Law No. 83 of 27 June 2015, converted into Law No. 132 of 6 August 2015, introduced into the Civil Code, after Article 2929, Section I-bis, entitled “Enforcement against assets subject to restrictions on disposal or to gratuitous transfers” (“Dell’espropriazione di beni oggetto di vincoli di indisponibilità o di alienazioni a titolo gratuito”), which contains only Article 2929-bis, headed “Enforcement against assets subject to restrictions on disposal or to gratuitous transfers”.
The provision states that
A creditor who is prejudiced by an act of the debtor creating a restriction on disposal or transferring immovable property or movable property registered in public registers, performed free of charge after the credit arose, may proceed to enforcement, provided that he holds an enforceable title, even if he has not previously obtained a judgment declaring the act ineffective, if he registers the attachment within one year of the date on which the act was registered. The provision of this paragraph also applies to a prior creditor who, within one year of the registration of the prejudicial act, intervenes in enforcement proceedings brought by others.
Where the prejudice arises from an act of transfer, the creditor brings the enforcement action in the forms of expropriation against the third-party owner.
The debtor, the third party subject to enforcement and any other person interested in the preservation of the restriction may bring the oppositions to enforcement provided for in Title V of Book III of the Code of Civil Procedure when they challenge the existence of the conditions referred to in the first paragraph, as well as the debtor’s knowledge of the prejudice that the act caused to the creditor’s rights.
Different interpretations of this provision are possible. One may confine oneself to the technical analysis, or one may also try to investigate “what lies behind it”, that is, the political and economic reasons, if any, that justified its enactment (a similar mechanism was also introduced into the Bankruptcy Law, as we shall see).
From this latter point of view, it is useful to read the explanatory report accompanying the bill converting the decree: the legislature acknowledges that the justice system is entirely failing, because about 6,500 new actions concerning the revocation of acts (revocatoria) are brought every year, and the average time to conclusion is 1,372 days for the first instance and 1,546 days for the appeal. The creditor must therefore wait 8 years before attaching the asset, also because a judgment revoking an act, as is well known, is not constitutive in nature, so the creditor must wait for it to become final.
The legislature, aware that it cannot reduce the length of judicial proceedings, therefore makes a choice between competing interests, favouring those of the creditor class to the detriment of those underlying the act performed by the debtor which, whatever they may be, seem to take second place.
It is therefore clear that the provision is the result of what, with regard to the amendments to the Bankruptcy Law, has been described as “ideological contamination”: just as the amendments to the Bankruptcy Law made by the same decree-law appear to rest on the (precisely ideological) assumption that the entrepreneur, in particular one who applies for a composition with creditors (concordato preventivo), is a fraudulent bankrupt[1], in the same way Article 2929-bis rests on the assumption that a debtor who performs one of the indicated acts is nothing other than a defrauder of the creditor.
The benefit for the creditor class – again in the words of the explanatory report – would consist in a reduction of the time and costs needed for the compulsory realisation of the claim. The provision should not be read in isolation, but in the context of the further reforms introduced by the decree-law No. 83 of 2015, in particular those, concerning enforcement and insolvency proceedings, that aim to speed up sales as much as possible. The benefit for the administration of justice would instead consist in the possible reduction of litigation, owing to the possibility that the debtor or the third party subject to enforcement may not bring an opposition.
The legislature, in fact, aware that it allows the creditor to subject to enforcement not the debtor’s assets but – in the case of a transfer – the assets of a third party, provided that opposition may be brought on the model of Articles 615 and 619 of the Code of Civil Procedure.
Still in terms of general assessments, the provision begins with this sentence: “A creditor who is prejudiced (my italics) by an act of the debtor”.
Well, until the entry into force of the decree-law, a creditor who claimed to have suffered prejudice from a disposition by the debtor had to bring proceedings to have it declared ineffective, but there was an ex ante review by the judge as to the existence of the prejudice.
The debtor, all things considered, was better protected, could defend himself and had room to negotiate[2]. The acts performed by the debtor often amounted to a mere procedural defence[3], depending – as the report itself stresses – on the length of the proceedings.
Following the entry into force of Article 2929-bis, the existence of the prejudice may simply be “asserted” by the creditor, without any prior review, and this “assertion” occurs, implicitly, through the bringing of the enforcement action. The review therefore takes place ex post, that is, when compulsory enforcement has already begun. It is true that the typical judicial protection remains; however, on the one hand the debtor’s position is weakened (the provision totally “depersonalises” him, without considering that behind every legal matter there is also a human story), and on the other, in the absence of a stay of enforcement, a successful opposition risks remaining a mere trophy to be put on display, a purely procedural victory[4]. The property, meanwhile, is gone[5].
The provision is paired with the one on the mortgage-backed life loan (prestito vitalizio ipotecario)[6], which allows the bank, in the event of default, to sell the mortgaged asset by private treaty, without any enforcement procedure that would allow other creditors to intervene. The latter is a position of privilege for the banking sector, probably unreasonable and discriminatory towards other creditors, the product of a bank-centric view of the credit recovery system.
In short, instead of reaching a judgment of ineffectiveness within a short time, which would require the commitment of judges and lawyers, rules are devised that promote a sort of “private justice” for banks[7].
Equally unreasonable, and the result of a forced reading, is the introduction of the presumption, albeit rebuttable (iuris tantum), that anyone who has a debt and disposes of assets free of charge always does so in fraud of the creditor. And that this is the presumption is stated in plain terms by the Report itself: “Consistently with the presumption of fraud (my italics), the burden of proof is reversed.” And it will probably amount to a probatio diabolica (an impossible proof), so much so that, as already noted above, the report itself relies on the fact that the debtor will not bring an opposition. This shows, as was immediately observed, that the examination of the claim proves to be a genuine fiction, being, precisely, merely contingent[8].
So: it is presumed that there is a fraud, and it is presumed that there is a final judgment declaring the transfer or the creation of the restriction on disposal ineffective.
Still on the level of legislative policy, it is beyond doubt that the provision makes it possible to hit, so to speak, the middle class, whose wealth is embodied in real estate, while leaving outside its scope those who hold real estate indirectly, through companies or similar legal structures.
2. The type of action provided for by the new provision
Article 2929-bis is a provision that breaks with the system of real estate enforcement in force until now. It in fact permits the enforcement against an asset that does not belong to the debtor, was not granted as security by its owner and, as a rule, will be free of prejudicial encumbrances. It makes it, probably, de facto inalienable for one year from its purchase.
One of the first questions raised by the provision is whether the action it provides for is a new type of action or a sort of “subspecies” of the revocatory action (azione revocatoria)[9].
The report accompanying the conversion bill states that it is “a simplified action, brought by the creditor not by a writ of summons but directly by means of the attachment, and therefore simultaneously with the exercise of the enforcement action”, while declaring that this “is not written expressis verbis, so as not to indulge in doctrinal definitions, but is apparent from the overall framework”. The legislature, in short, adopted a pragmatic attitude in drafting the provision, concerning itself exclusively with identifying the creditor’s means of protection.
According to one of the first readings of the provision, the scant attention paid to systematic aspects would demonstrate the autonomy of the action under Article 2929-bis as compared with the revocatory action, and the proof would be the total absence of provisions coordinating the new instrument with the system of real estate and movable property registration[10].
The elements distinguishing the action under Article 2929-bis from the revocatory action may be identified as follows:
(a) the provision applies only to gratuitous acts, whereas the revocatory action also allows the revocation of acts for consideration.
(b) the provision protects the creditor only against acts subsequent to the arising of the credit, whereas the revocatory action, under certain conditions, may also be brought against acts performed earlier.
(c) the provision applies only to acts concerning immovable property or movable property registered in public registers. The thesis that the expression “movable property registered in public registers” may be extended also to acts concerning other assets, provided they are capable of forms of publicity suitable to show the existence of restrictions on disposal, and in particular quotas in an S.r.l. (limited liability company), is in fact unconvincing[11]. The provision, in view of the vulnus it causes to the security of legal transactions, should be interpreted strictly.
(d) an enforceable title is required, which by contrast is not required to bring a revocatory action[12].
(e) the action must be brought within the short period of one year; within that period, in particular, the attachment must be registered, whereas the ordinary revocatory action is subject to a five-year limitation period.
(f) the creditor need not obtain any judgment of ineffectiveness of the act before serving the attachment; the provision itself in fact states that the creditor may proceed “even if he has not previously obtained a judgment declaring the act ineffective”.
(g) the provision may also be used by a “prior creditor who, within one year of the registration of the prejudicial act, intervenes in enforcement proceedings brought by others[13]”.
(h) finally, the provision reverses the burden of proof of the absence of prejudice, which may be discharged, in opposition proceedings against enforcement, by the debtor, by the third party subject to expropriation or by third parties interested in the preservation of the restriction.
3. Conflicts between creditors and the intervention of “prior creditors”
The provision says nothing about how to resolve conflicts between the creditors of the disposing party and the creditors of the third-party beneficiary.
Assuming a gift of real estate from A to B, it is in fact possible that:
a) A’s creditors holding an enforceable title attach the asset under Article 2929-bis;
b) B’s creditors holding an enforceable title attach the same asset under the ordinary rules.
The attachment by A’s creditors may take place before or after the attachment by B’s creditors, and vice versa. In both cases the conflict between A’s and B’s creditors must be resolved.
If, after the gift from A to B, the asset is attached by A’s creditors, it seems well founded to hold that B’s creditors may intervene in the enforcement (and they could even attach the asset owned by B, perhaps counting on A’s opposition to enforcement being upheld). The asset is in fact owned by B, since Article 2929-bis allows enforcement irrespective of obtaining a judgment declaring the gift ineffective. However, in the conflict between these two categories of creditors, A’s creditors must be held to prevail over B’s creditors (whether intervening or attaching subsequently), because the action under Article 2929-bis is equated, as regards its effects, with a judicial revocation having taken place. In other words, as rightly observed[14], once enforcement by the donor’s creditors is admitted within one year of registration, it would make no sense to make them yield to the creditors of the successor B.
If, after the gift from A to B, the asset is instead attached (first) by B’s creditors, A’s creditors will not be able to intervene in the enforcement (because they are not its creditors), but may only attach the asset under Article 2929-bis, provided this takes place within one year of registration.
In this case, will B’s creditors be preferred because they registered the attachment before A’s creditors?
The question is not easy to resolve, and consider also the case in which B’s creditors, rather than attaching the asset, have registered a mortgage on it.
Now, while it is true that Article 2929-bis admits enforcement by the donor’s creditors within one year of registration, this does not warrant the view that it goes so far as to reward their inertia, so as to make them prevail in every case over the donee’s creditors who have acquired a right of pre-emption (prelazione) over the asset through registration of a mortgage or who have attached the asset itself. If that were so, the provision would in practice suspend the effects of any negotiating or enforcement activity on gifted assets pending the expiry of the one-year period from registration, which frankly does not seem reasonable.
It may therefore be held that, where A’s creditors have not availed themselves of the option granted to them by Article 2929-bis by attaching the asset donated to B, they must yield to the registered attachment or the registered mortgage of B’s creditors on that asset.
If, on the other hand, in the presence of an attachment registered by B’s creditors, the year passes without A’s creditors having attached the asset donated to B, they may still bring the revocatory action. In this case Article 2195, paragraph 2, will apply and the effects of the judgment will not be enforceable against B’s attaching creditors (as they registered the attachment before the registration of the court application for revocation). The running of the one-year period in fact “reactivates”, so to speak, the ordinary rules resolving conflicts of registration.
It has already been seen that Article 2929-bis also applies to a “prior creditor who, within one year of the registration of the prejudicial act, intervenes in enforcement proceedings brought by others” and that “prior creditor” must be taken to mean one who holds claims arising before the prejudicial act was performed, and not the enforcing creditor[15]. Such creditors may therefore intervene in the enforcement without needing to attach the asset in application of Article 2929-bis (a subsequent attachment would in any case count as an intervention).
As regards these creditors, the question that arises is whether, in order to intervene in enforcement brought under Article 2929-bis, they too must hold an enforceable title.
I would say the answer must be in the affirmative, because the action under Article 2929-bis is equated, as regards its effects, with the revocatory action. And just as only the creditor who brought the action benefits from the effects of the revocation judgment, the same principle must apply to the action under Article 2929-bis. Intervention by only those creditors holding an enforceable title is therefore admitted because they are in the identical position to the creditors who brought the action under Article 2929-bis. Just as they could attach the asset, so they must be allowed to intervene.
Creditors not holding an enforceable title will retain the possibility of bringing the revocatory action, but the registration of the related application cannot prevail over the registration of the attachment, as Article 2915, paragraph 2, precludes it.
4. The transactional prerequisites for the provision to operate: gratuitous acts
The action provided for by Article 2929-bis may be brought by the creditor against a gratuitous act of transfer[16] performed by the debtor or against an act creating a restriction on disposal. In both cases the act must concern immovable property or registered movable property.
It is crucial to identify the scope of the provision, for which the content of the definition of “gratuitous acts” must be defined as accurately as possible, a task which is indeed not easy.
Gratuitousness, in fact, exists when the acquisition by one of the parties takes place without consideration, which would bring an innumerable series of transactions within the scope of the provision. On the other hand, the existence of reciprocity (corrispettività) does not in itself determine the characterisation of the act as being for consideration (onerosità), the levels of enquiry being different: the first (reciprocity) refers to the relationship established between the performances; the second (onerousness) refers to the economic interdependence of the performances in terms of mutual advantages and sacrifices, regardless of the structure used[17].
Gratuitous acts certainly include those with a liberal effect, to be assessed in the light of the legal-economic result they produce. From this perspective, liberalities are all attributions without consideration in favour of a beneficiary made “in order directly to satisfy a non-pecuniary interest of the disposing party[18]”. Article 2929-bis will therefore certainly apply to gifts. Any type of gift, accordingly, will not escape the application of the provision, subject to verifying whether the donee may claim back from the proceeds of the enforcement any burdens (oneri) already discharged[19]. Gifts may also include the family pact (patto di famiglia), where it concerns businesses including real estate. This is because, at least according to the prevailing opinion, the family pact constitutes a liberality. Clearly, the use of Article 2929-bis may jeopardise the survival of the business, which may have been transferred to a child because he or she was deemed more capable. And, obviously, that of its employees as well as of any suppliers whose survival on the market is often closely tied to that of their debtor company. The legislature, however, has not taken account of such considerations, and perhaps it should have.
There are also gratuitous acts that are non-donative or atypical, performed in fulfilment of obligations, or gratuitous acts that may be placed in a sort of grey area between liberality and duty, such as, for example, acts performed within the family, which some authors call acts with a family cause, that is, acts “aimed at satisfying and settling pecuniary and existential interests arising from the marital relationship[20]”, in respect of which a liberal effect cannot always be identified. The risk of an extension of the scope of the provision, if it is deemed applicable also to such acts merely because they provide for no consideration, with the resulting litigation, does indeed exist.
Consider, for example, as regards acts of the first type, a deed of gratuitous transfer of land to a municipality in performance of a subdivision agreement (convenzione di lottizzazione). Can the provision reasonably be held to apply to such acts as well? I would say that the expression gratuitous acts must be interpreted in the light of the rationale of the provision, which is to strike at patrimonial impoverishments in respect of which the disposing party has no economic interest whatsoever, that is, those that are genuinely liberal. A deed of gratuitous transfer of land to a municipality certainly does not appear to be dictated by a non-economic interest of the disposing party; it is an act of a solutory nature, discharging obligations assumed within an administrative procedure, namely the payment of urbanisation charges, so much so that it enjoys favourable taxation[21].
In the family context the question is even more complex, although the objective scope of the provision, limited to immovable property and registered movable property, should make the task easier. Within the family there may in fact be gratuitous acts that are not gifts, because, for example, they meet a primary need or, more broadly, the maintenance of the beneficiary of the act according to the family’s economic circumstances. They are acts implementing obligations laid down by law, they are not spontaneous, they are not gratuitous and they are not liberalities[22], unless a certain threshold is exceeded, beyond which a gift arises. Clearly, it is the identification of this threshold that makes the matter complex and dependent on the specific case. Reference indicators may be the assets of the disposing party and the type of need for which the attribution is intended.
In particular, the question of whether or not a gift exists may arise, and obviously this is the case of attributions made in settling a marital crisis.
The actual nature of such transactions has never been entirely clarified; and to this day what the “cause” of such attributions is remains a matter of debate. Identifying the cause of the asset transfers made in agreements settling a crisis, in relation to Article 2929-bis, therefore becomes decisive. The need to identify the nature of the agreements the spouses intend to enter into, a careful enquiry into their intention, and the need to distinguish between cause and motives therefore constitute the logical prerequisite for identifying the justifying reason for the asset transfers. The enquiry is further complicated by the fact that, in a crisis, there is often an intertwining “of pecuniary reasons, personal reasons, emotional reasons, reasons arising from previous relationships”, ultimately a very varied series of interests governing the attribution. And these interests are reflected in the search for the cause, understood as the synthesis of the essential effects directed at realising the interests that are concretely intended to be pursued.
As is well known, the thesis according to which the so-called “contracts of marital crisis” are to be characterised as contracts for consideration, entered into by the spouses to regulate their reciprocal pecuniary relationships arising during their relationship and on which they intend to condition the consensual settlement of the marital crisis, provided that no different typical cause is present[23], appears to have been accepted by the case law as well[24]. The onerous nature of such acts will therefore exclude the application of Article 2929-bis, but it already seems foreseeable that on this specific issue the litigation will not be negligible, also because in respect of such acts there will not always be intervention by the judicial authority that could in some way shield them from attacks by creditors of one of the spouses, since it is quite possible that such transfers are preceded by an agreement concluded within assisted negotiation (negoziazione assistita). Another question, on which we shall dwell later, is whether in opposition proceedings against an action under Article 2929-bis it is possible to show, in order to prevent the procedure from continuing, that the interest underlying the act is of a higher rank than that of the creditor.
The provision should instead be inapplicable in the following cases.
a) Sales disguising a gift
Setting aside the consideration that constructing a scheme of this kind is today extremely difficult, given the payment traceability requirements, I would say that sales disguising a gift fall outside the scope of the provision. In this case it will first be necessary to bring an action to obtain a declaration of simulation and then to bring the enforcement action. The creditor, moreover, may register the action under Article 2652, no. 4, thereby “blocking” the asset[25].
b) Mixed transactions with a gift element
With regard to the negotium mixtum cum donatione, more precisely a sale mixed with a gift, a notarial school of thought holds the provision applicable, since it is merely a matter of establishing, at the enforcement stage, which portion of the asset (rectius: what value of the asset) can justify the consequences of a gift from the standpoint of enforceability, an assessment that can be made only by the enforcement judge[26]. It is objected – in my view rightly – that in this case we are dealing with an indirect transaction, that is, a transaction for consideration is used to achieve a further liberal intent[27]. The act entered into therefore remains, in the eyes of the third party, always one for consideration. Moreover, to imagine that a creditor could act against such acts with an action under Article 2929-bis would lead to very serious uncertainty for legal transactions. Who would buy, running the risk that a creditor of the seller attaches the asset and then defers to the opposition stage in the enforcement proceedings the issues relating to the adequacy of the price paid?
c) Indirect liberalities
What has just been said applies all the more to indirect liberalities, in particular those consisting in the so-called registration of assets in another person’s name.
Article 2929-bis in fact aims to strike at acts that diminish the debtor’s general guarantee consisting of real estate, and it is quite obvious that in the usual case of a parent (the hypothetical debtor) who pays the price of a home purchased by his or her child, the property leaves the estate of a third party and not that of the debtor. Nor does the argument relying on the case law that regards the property, rather than the money used for the purchase, as the object of the indirect liberality in these cases seem convincing[28]. First, because the case-law principle was laid down in a case concerning the identification of the object of collation (collazione) and not of reduction (riduzione). Second, because the same case law has more recently held that, in the case of an indirect donation of a property, effected by purchasing the asset with the disposing party’s own money and registering it in the name of another person, the principle of the reserved share in kind does not apply to the reduction of such an indirect liberality, so that the prejudice suffered by the forced heir is to be redressed by the typical methods of a claim in debt[29]. Finally, because, more recently still, the case law has even gone so far as to hold that an indirect donation of a property cannot be established where the donor pays only part of the price of the asset, since the payment of money constitutes a different way of achieving the identical legal and economic result of the liberal attribution of the property only where he bears the entire cost[30].
d) Performance of natural obligations (with remarks on the amendment of Article 64 of the Bankruptcy Law)
Acts performing natural obligations (obbligazioni naturali) should also fall outside the scope of Article 2929-bis. The regime of such acts with regard to the protection of creditors must also be compared with Article 64 of the Bankruptcy Law (l. fall.), a provision on which Decree-Law No. 83 of 2015 intervened by adding a second paragraph. Paragraph 1 of Article 64 of the Bankruptcy Law provides that “Gratuitous acts performed by the bankrupt in the two years preceding the declaration of bankruptcy, excluding customary gifts and acts performed in fulfilment of a moral duty or for public benefit, to the extent that the liberality is proportionate to the donor’s assets, are ineffective as against creditors”. Paragraph 2, added by the decree-law, provides instead that “The assets that are the subject of the acts referred to in the first paragraph are acquired to the bankruptcy estate by registration of the judgment declaring bankruptcy. In the case referred to in this article, any interested party may lodge a complaint against the registration pursuant to Article 36.”
The provision has been interpreted by legal scholars, first, as also covering acts performing natural obligations[31] and, as relevant here, as meaning that the particular character of such acts exempts them not only from the bankruptcy revocatory action but also from the ordinary one[32]. The protection of creditors, which under Article 64, paragraph 1, of the Bankruptcy Law operates through proof of the disproportion of the attribution to the disposing party’s assets, should allow an action under Article 2929-bis for that part of the attribution possibly exceeding the limit of proportionality[33]. Even in this case, however, the question of verifying the disproportion, as would happen, mutatis mutandis, in the case of a sale mixed with a gift, would be deferred to the opposition stage in the enforcement proceedings. The creditor would be given a remedy which, given its exceptional nature, appears disproportionate with regard to such formally non-liberal acts (and a clear expressio causae will be very advisable, indeed I would even consider it necessary).
The occasion of analysing the relationship between acts performing natural obligations and Article 2929-bis allows some reflections on the innovation made to Article 64 of the Bankruptcy Law.
Is it, first of all, an optional regime that the receiver (curatore) may activate at his discretion[34]? The provision in truth states that the assets “are acquired” to the bankruptcy estate by virtue of the registration of the bankruptcy judgment, and not that they “may be acquired”. It might therefore, on the contrary, be hypothesised that the receiver must in any event register the bankruptcy judgment and that proportionality is to be discussed – if need be – in the complaint under Article 36 of the Bankruptcy Law (which, among other things, provides for a very short period, of only 8 days), with all the guarantees of adversarial proceedings and a decision rendered by an independent judge? From this perspective the complaint would indeed seem to be a mandatory route, although it would impose on the receiver the obligation to give notice of the registration of the judgment, since the period for the complaint runs from knowledge of the act. Moreover, the provision allows the complaint to be lodged by “any interested party”, not only the beneficiary of the transfer, so the problem will arise of when the period starts to run for persons other than the beneficiary of the transfer. It should, conversely, be observed that, before the recent amendment, bringing an action under Article 64 of the Bankruptcy Law was certainly not mandatory for the receiver.
Another question concerns the effect of the provision. It has been asserted that the effect is translative, and that a retro-acquisition of the asset from the purchaser to the bankrupt takes place (beyond unlikely subjectivisations, the expression “bankruptcy estate” (patrimonio del fallimento), used in the provision, is clearly to be understood as “the bankrupt’s estate”).
Now, it is true that the provision uses the term “acquired”; however, it must be considered that the new paragraph is added to a provision governing the ineffectiveness of certain acts, and interpretative coherence would seem to require that the effect produced be identical. The effect of registration, therefore, should be to allow a sort of destination restriction to be imposed on the asset for the satisfaction of the claims of the general body of creditors, according to the rules of the insolvency concurrence (concorso).
On the other hand, if it were a re-transfer, one would also have to ask whether such registration constitutes a taxable event, with all the consequences as to how the tax is applied, since it is a translative effect deriving from the performance of a publicity formality (but the effect in reality derives from the judgment, which constitutes the title for registration, so it should be the latter that is registered with payment of the relevant taxes). Not only that. Given the beneficiary’s possibility of lodging a complaint (which implies that the receiver is under an obligation to notify him that the formality has been carried out), it should further follow that a successful complaint would once again produce the transfer of the asset from the bankrupt to the beneficiary, with a new payment of taxes. It seems more coherent to hold that what is provided for by Article 64, paragraph 2, of the Bankruptcy Law is nothing other than the application in bankruptcy of the system designed by Article 2929-bis.
e) Renunciation
Abdicative renunciation (for example of a co-ownership share, a transaction now uncontroversially admitted) should not fall within the scope of the provision, as it does not give rise to a transfer. The increase accruing to the other co-owners is in fact not a direct effect of the renunciation but only a reflex one. The conclusion seems simple; however, some doubt is justified, first of all because, even though the provision uses the term “transfer”, its rationale should allow it to cover all acts that bring about a “diminution of assets” and therefore also renunciations. Second, because the characterisation as gratuitous also depends on the interest that moved the renouncing party to enter into the act: was it a pecuniary interest, in which case perhaps the renunciation cannot be characterised as a gratuitous act for the purposes of Article 2929-bis? Or a non-pecuniary interest, for example that of benefiting the other co-owners, in which case the renunciation itself may be said to be gratuitous?
f) Partition and settlement. Mortgage.
It seems that partition and settlement (transazione) must be excluded from the action under Article 2929-bis as acts for consideration[35]. It is true that it cannot be ruled out that indirect liberalities may be achieved through such acts. However, it has already been observed that indirect liberalities are also excluded from the scope of the provision.
A different discussion could be had for the mortgage, which, as is well known, is an act in principle capable of being challenged by revocatory action (both bankruptcy and ordinary).
In one of the first commentaries on the new provision it was asserted that even if a mortgage cannot be considered among the transfers, it nevertheless results in the placing of an encumbrance on the asset, which is earmarked as security for a specific debt, to the detriment of any other unsecured creditors who have attached the asset[36].
A problem of conflict therefore arises between the attaching creditor and the creditor who registered a mortgage in the preceding year.
According to that author, this conflict should be resolved by holding that a mortgage not contemporaneous with the arising of the credit is “gratuitous” and is therefore included among the “restrictions on disposal” that cannot be set up against a creditor who attaches the asset within one year of registration. The gratuitous nature of a mortgage granted not contemporaneously with the arising of the credit (the example given is a mortgage granted in respect of a loan taken out to extinguish a pre-existing debt) is derived from the case law on ordinary and bankruptcy revocatory actions. This, however, raises some perplexities, given that the same author considers the action under Article 2929-bis to be an entirely different action from the revocatory action, which should lead to not being able to use automatically, with regard to the acts considered by Article 2929-bis, the case-law principles laid down with regard to the different institution of the ordinary revocatory action. It may also be observed that the gratuitous nature of a mortgage granted not contemporaneously with the arising of the credit can only be inferred by presumption, since it may well have been granted for consideration. And all of this will inevitably have to be debated in court, with a consequent aggravation of litigation.
It seems to me, in truth, that to treat a mortgage in the same way as an act entailing a restriction on disposal of the asset, thereby allowing other creditors to bring the action under Article 2929-bis, is a forced reading and may produce serious and damaging consequences for debtors. Consider the typical case of a person who has a bank debt arising from an unsecured current-account credit facility and intends to settle it by taking out a land mortgage loan (mutuo fondiario). No bank would grant land mortgage loans any more or, assuming it did, it would have to wait one year before disbursing the sum. The mortgage would in fact become consolidated once one year had elapsed from registration in the absence of creditors who have attached the asset under Article 2929-bis, and the provision would, among other things, derogate from Article 39, paragraph 4, of the Consolidated Banking Act (Testo Unico Bancario), which, for persons subject to bankruptcy, excludes from the bankruptcy revocatory action mortgages registered ten days before the publication of the judgment declaring bankruptcy.
The thesis that regards the mortgage as a restriction on disposal encumbering the asset, in other words, does not seem to me adequately reasoned and risks extending the scope of the provision out of all proportion. Consider a gratuitous act creating an easement (servitù) over an immovable property: does that act not also create an encumbrance on the asset? And is it conceivable that, faced with such an act, any creditor of the owner of the dominant tenement could attach the asset? The identification of the acts falling within the scope of the provision should instead be made by looking at the interests that it aims to protect. The function of the provision is to prevent all those acts that bring about a diminution of the general guarantee in favour of creditors, either through a transfer of the asset, which in effect no longer forms part of the estate, or through the imposition of a restriction on disposal, which should be understood as an act whose effect is to remove from creditors the availability of an asset for the compulsory satisfaction of their claim, and this can occur only through acts that bring about the separation of an asset from the remainder of the disposing party’s estate. In that sense, then, an act creating a mortgage, since it brings about no separation of assets, does not appear capable of being regarded as a restriction on disposal. Anyone who considers himself harmed by a mortgage granted free of charge will in any case have the remedy of the ordinary revocatory action available.
5. Acts creating restrictions on disposal
The end of the previous section already touched on what, in our view, is to be understood as an act creating a “restriction on disposal”: an act whose effect is to remove from creditors the availability of an asset, which is separated from the remainder of the disposing party’s estate[37]. Confirmation in this sense also comes from the report accompanying the decree-law conversion bill, which indicates as examples of acts creating restrictions on disposal the family assets fund (fondo patrimoniale) and the self-declared trust[38].
In other words, borrowing a statement by legal scholars of more than forty years ago, “unavailability” (indisponibilità) is to be understood as that situation in which, alongside the relationship between the author of the act and the asset, there is a second relationship that usually takes the form of a claim in debt[39]. The relationship pertaining to the holder of the right of ownership is subordinated to the obligational relationship. This is what happens in the family assets fund, in which, following the execution of the deed, the settlor is under an obligation to devote the asset to the needs of the family, so much so that in the event of breach the remedy of damages is considered available; and it is what happens in the case of the self-declared trust and of the deed of destination under Article 2645-ter, in which the disposing party, who assumes the capacity of trustee or manager, is placed under an obligation to devote the assets to the pursuit of the interests of the beneficiaries, who hold a position that can be characterised as that of a creditor.
For acts creating restrictions on disposal as well, the prerequisite for application is that they be performed free of charge, as is quite clearly apparent from the wording of the provision. We shall examine below some of the innumerable and complex problems of application that arise from the execution of the most common acts creating restrictions on disposal which have the effect of removing real estate from the creditor’s guarantee: the family assets fund with ownership reserved to the settlor, the destination restriction under Article 2645-ter and the trust.
a) Family assets fund with ownership reserved to the settlor
That the family assets fund is an act open to challenge by the new action seems entirely uncontroversial and taken for granted. Moreover, the current judicial extension of the concept of “needs of the family” has rendered the institution almost useless, in effect erasing it from the Civil Code. The introduction of Article 2929-bis, which allows direct attachment of the asset, seems, in the light of current case law, to add almost nothing more. Nor has the attempt to classify the deed establishing the family assets fund among acts for consideration succeeded: the case law consistently holds it to be a gratuitous act[40].
As for the lack of coordination with the rules on publicity of the deed establishing the family assets fund, it should be recalled that, according to the Joint Sections (Sezioni Unite) of the Court of Cassation, the enforceability of the restriction arising from the fund depends on the annotation in the margin of the marriage certificate[41], whereas registration under Article 2647 would be downgraded to mere notice publicity (pubblicità-notizia), so much so that it could even be omitted (Article 2671 not being applicable).
It is then necessary to ask whether the lack of registration does not allow the creditor to act under Article 2929-bis, given the absence of the formality from which the starting date (termine a quo) of the one-year period is to run.
Two lines of reasoning are possible: one could hold, for example, that Article 2929-bis is a provision innovating on Article 162 and that it therefore requires registration of the deed establishing the family assets fund relating to immovable property for the purposes of enforceability. It could be objected that Article 2929-bis is not a special provision in relation to Article 162, which would remain applicable; however, it should not be forgotten that the necessity as well as sufficiency of the annotation for the purposes of enforceability of the fund against third parties is a case-law thesis, so one would have to discuss a relationship of speciality not between rules but between a Civil Code “provision” and a “rule” of case-law origin, which is hardly conceivable.
One could instead reason, perhaps on firmer ground, as follows: since the provision aims to strike at the debtor who “removes” assets from the creditor by means of an act enforceable against him, the expression “date on which the act was registered” should be understood – for acts concerning immovable property for which enforceability is secured by a means other than registration – as “date on which the act was made enforceable”.
On the other hand, even in the case of Article 2915, what matters is that the attachment precedes the marginal annotation and not the registration of the family assets fund, so that the creditor prevails even if he registers the attachment after the registration of the deed establishing the family assets fund but before the annotation in the margin of the marriage certificate.
The question is illustrative of one of the thousand problems that the provision will raise, which will certainly be exploited to reaffirm that, for a family assets fund concerning immovable property, enforceability depends on registration and not on annotation[42].
Still with regard to the family assets fund, it is necessary to ask whether the gift of an asset already placed in a family assets fund, considered admissible provided it is made in favour of one of the family members and the restriction arising from the fund is maintained[43], may fall under the provision’s “caudine forks” (forche caudine).
In this situation we could have creditors prior to the annotation of the deed establishing the family assets fund and creditors subsequent to it but prior to the gift of the asset forming part of the fund.
If the provision is held not to be applicable, the creditor, in order to attack the asset by enforcement action, would have to obtain (subject to limitation) revocation of both the family assets fund and the gift. Consequently, if the family assets fund was established (more precisely: annotated) more than 5 years ago, no revocatory action can be brought against the deed establishing the fund. It could, however, be brought against the gift, because while it is true that the asset remains encumbered by the restriction arising from the family assets fund, it is also true that the restriction itself may cease, so that, in the absence of a revocatory action, the creditor would be left without any protection, the asset having left the settlor’s estate.
b) Destination restrictions under Article 2645-ter and trusts (self-declared and otherwise)
With regard to destination restrictions and trusts, two systematic remarks are called for first of all.
The first concerns the admissibility of destination restrictions and self-declared trusts. The provision seems to me to make a clean sweep (tabula rasa) of the opinions, including judicial ones, that would prohibit the non-translative deed of destination under Article 2645-ter[44] and the self-declared trust[45] (the latter expressly mentioned in the report accompanying the conversion bill)
The second remark, also important, is the statutory confirmation of the enforceability of such restrictions against creditors. This applies above all to the so-called pure destination deed, not accompanied by the execution of an act of a different nature, which certain case law has denied[46]. Once the one-year period has elapsed, the non-translative restriction will prevail over the position of the prior creditor, who will therefore have to bring the revocatory action to obtain the ineffectiveness of the restriction or of the transfer[47].
As regards the relationship between such acts and Article 2929-bis, it should preliminarily be observed that the Italian case-law landscape of recent times is quite uniform: in the field of trusts, in particular, there is a continuous proliferation of judgments declaring them ineffective as having been established to the detriment of creditors[48]. This is evidently because the trust is – wrongly – understood and promoted as an instrument that reliably ensures asset protection. Moreover, in many cases, in all likelihood, a mere reading of the trust deed would have shown clearly that the justifying reason for the act was exclusively that of obtaining asset segregation, or that the arrangement had not even been completed. Consider, with regard to the latter hypothesis, the innumerable trusts established with a reservation of the right to designate the beneficiaries later: these are, obviously, radically void trusts or, at best, trusts in the process of formation, in respect of which no asset-segregation effect is produced until the beneficiaries have been appointed[49]. With regard to the deed of destination, by contrast, recent case law tends to centre its assessment on the absence of worthiness (meritevolezza) of the interests, with, in my view, undue intrusions into aspects relating to the motivation of the act, which should not be conceivable[50].
Regardless of this, it must in any case be noted that a good part of trusts structured as trusts for beneficiaries other than the settlor can be regarded, as can easily be verified by analysing practice, as non-donative liberalities and are therefore certainly included among the acts considered by Article 2929-bis.
It cannot, however, be ruled out that both deeds of destination and trusts may be characterised as being for consideration, and thus escape the scope of Article 2929-bis[51].
It has been argued, for example, that such acts may be used to perform natural obligations, as occurs in the field of de facto families (famiglia di fatto), referring in this regard to Article 64 of the Bankruptcy Law, examined above. The question is complex, because it raises a problem of balancing competing interests, those of creditors and those of the family in the broad sense, thus including in this sphere also social formations other than marriage, which now uncontroversially enjoy constitutional protection.
With regard to the trust, consideration must also be given to the so-called trusts discharging obligations of contractual or statutory origin (think, among these, of trusts established in the context of a marital crisis) or security trusts and so-called liquidation trusts.
In the case of the trust, the complexity of the arrangement, which always requires an organisational moment and a dispositive moment, the latter formally constituting the object of the action under Article 2929-bis, necessarily requires a unitary consideration of the two different elements from the standpoint of the link between them, and also makes necessary an enquiry to identify the person who receives the benefits of the trust through the vehicle of the segregated estate and suffers in his own estate the negative effects of the attachment, which will obviously be carried out against the trustee. It will therefore be necessary to refer to the beneficiary in order to assess the gratuitous or onerous nature of the trust, so that for the purposes of Article 2929-bis individual cases will have to be assessed in their structural variety and in their effects. In order to characterise the arrangement as gratuitous or onerous it will therefore be necessary to consider the entire set of interests, as it emerges from the link between the organisational moment of the individual trust and the dispositive moment, and from the involvement of the settlor, the trustee and the beneficiary or beneficiaries. It is therefore clear that, for the purposes of a correct characterisation of the act as gratuitous or onerous, reference must always be made to the underlying relationships between the settlor and the beneficiaries of the trust, beyond what might appear to be the purely formal reality of the relationship between the settlor and the trustee, who performs the office of realising the purposes of the trust through the proper management of it, to which he is appointed. To hold otherwise would run the risk of considering as falling within the scope of Article 2929-bis all trusts, given that the act entrusting the assets to the trustee could always be characterised as gratuitous. In reality, while it is true that the trustee provides no consideration in respect of the entrustment of the assets, it is no less true that the cause of the transfer is to be found in the deed establishing the trust and that the transfer of the assets to the trustee is therefore neutral for the purpose of determining whether the trust is gratuitous or onerous.
It follows that the prejudicial act against which the creditor may bring an action under Article 2929-bis will be the act of transfer or the mere act of imposing the restriction in the case of a self-declared trust, but that it will not be possible to disregard the deed establishing the trust in order to characterise the transfer itself concretely as gratuitous or onerous.
6. The problem of the successor in title of the beneficiary
The question of how to treat the case in which, after a gift from A to B, the latter sells the same asset to a good-faith third party C, when one year has not yet elapsed from the registration of the gift from A to B, will occupy interpreters considerably: may A’s creditor attach the asset sold to C, in application of Article 2929-bis?
Some commentators have held that the good-faith successor for consideration must be protected and that he is indeed protected[52].
The protection of the good-faith third-party purchaser for consideration would derive:
– from the fact that the provision refers to an enforcement action against the “third-party owner”, linked to the fact that the prejudice derives from an act of gratuitous transfer, so that the presence, in the chain of transfers, of an act for consideration would deactivate the remedy offered by the provision;
– from the principle that can be derived from Article 2901, last paragraph, which in matters of ordinary revocatory action always protects the good-faith sub-purchaser for consideration, a principle that would be of general character;
– from the necessary equality of treatment that the legislature should respect between third-party sub-purchasers, regardless of whether the creditor brings the ordinary revocatory action or the action under Article 2929-bis.
In other words, the case is resolved in favour of the good-faith third-party purchaser for consideration by applying Article 2652, no. 5, the provision governing the effects of the registration of a court application seeking revocation of acts subject to registration. This provision is held to be applicable also to the action under Article 2929-bis, even though it is not saved by the latter.
This thesis is based on the following: that the title of the predecessor in title (the donee) is ineffective by operation of law (ex lege). How can the protection of a good-faith third-party purchaser for consideration then be justified against a title of the predecessor held to be ineffective? The thesis of ineffectiveness ex lege, moreover, besides being contradicted by the wording of the provision, which allows the creditor to proceed to enforcement “even if he has not previously obtained a judgment declaring the act ineffective”, would depend on the existence of a creditor of the predecessor prior to the registration of the act, a circumstance that at the time of execution might be entirely unknown. This is not to say that the third-party successor is unprotected, but that the grounds for his protection must be identified on other bases and not by arguing from the fact that the predecessor’s title is ineffective.
The absence of any reference to Article 2652, no. 5, or in any event of a provision governing the conflict between the attaching creditor and third-party successors, could instead leave the third party without any protection. “Third-party owner” could therefore be not only the “direct” beneficiary of the gratuitous act but also anyone else who has purchased from him, who within the year could likewise suffer the attachment. On the other hand, if the conflict were to be resolved on the basis of the principle of priority of registrations, whereby the third-party sub-purchaser is protected provided he registers the purchase before the registration of the attachment, it is not clear why this conclusion should hold only for acts for consideration. The provision, in the conflict between the donor’s creditor and the third-party purchaser from the donee, would in substance seem always to favour the former. Therefore, once the gift has been made, it would seem entirely pointless to alienate for consideration to a third party in order to prevent the creditor’s action. The effect introduced by Article 2929-bis with regard to third-party successors of the donee would thus come to resemble very closely that provided for by Article 563, which allows a forced heir prejudiced by a gift to bring the action for restitution against the donee’s successors[53].
On the other hand, the provision requires the creditor to register the attachment within one year of the date on which the act was registered, saying nothing about the safeguarding of acts registered or entered in the meantime, which would seem to constitute an express derogation from the principles governing registration[54].
One might then ask whether the donee can be characterised as a sort of holder in the interest of another. To reach this result, however, one would have to hold that the donee’s ownership is, ex lege (that is, under Article 2929-bis), separated from the rest of his estate, being functionalised to secure the donor’s prior creditors until the end of the year following registration of the act, so that until the expiry of the year from registration the asset would circulate bound to the interests of the donor’s prior creditors. The donee’s creditors could therefore not attack it except after that period had elapsed, which the provision does not however state. On the contrary, the provision would seem to allow, as has just been observed, the asset to be attacked by the donor’s creditor – always within the one-year period – even if the donee has alienated it to a third party, and even the third party’s creditors – at this point – may participate in the enforcement.
Reasoning in these terms, and thus regarding the third-party successor of the donee (or of the trustee or manager in the case of a translative deed of destination under Article 2645-ter) as unprotected, however, means reading Article 2929-bis in a strictly literal manner, exalting out of all proportion the legislative-policy reasons underlying it. And this would have disruptive effects on the system, which is instead oriented towards striking a balance between the interests of credit and those of ownership, as demonstrated by the various provisions of the Code protecting the good-faith successor for consideration, that is, his reliance (affidamento)[55].
We reiterate: the creditor cannot be a hyper-privileged party compared with other members of society, to the point of having his inertia rewarded (at least until the end of the year from registration) even where he does not use the instrument offered to him by Article 2929-bis for the protection of his claim in the presence of a gratuitous act of disposal. It may be admitted that, in the presence of a further gratuitous act of disposal, the third-party successor, who has made no sacrifice, must yield to the creditor, but it appears disproportionate and unreasonable, as well as harmful to the right of ownership, to admit that even the good-faith third-party successor for consideration must yield to the creditor. The normative justification for the prevalence of the good-faith third-party successor for consideration must therefore be found in the system (the argument based on the supposed ineffectiveness of the predecessor’s act thus proves fallacious), which is wholly oriented towards protecting the good faith of the third-party successor for consideration[56]. Article 2929-bis must therefore be interpreted systematically. While it is true that it says nothing on the resolution of conflicts, it is no less true that such significant exceptions would have had to be expressly provided for (subject to testing their “resilience” in the light of constitutional principles).
7. Defence against attachment under Article 2929-bis
Article 2929-bis provides that
The debtor, the third party subject to enforcement and any other person interested in the preservation of the restriction may bring the oppositions to enforcement provided for in Title V of Book III of the Code of Civil Procedure when they challenge the existence of the conditions referred to in the first paragraph, as well as the debtor’s knowledge of the prejudice that the act caused to the creditor’s rights.
It may be observed immediately that the provision does not limit the power of opposition to the debtor alone but extends it, for obvious reasons, also to the third party subject to enforcement and to any other interested person. A plurality of persons may therefore bring opposition proceedings, including, as may occur where the act performed is a trust or a deed of destination under Article 2645-ter, the trustee, the manager (if any) (where the destination is translative) and the beneficiaries.
As to the non-existence of the conditions, it will first of all be possible to object that the creditor lacks an enforceable title or that the act performed is not among those covered by the provision.
As regards the debtor’s knowledge of the prejudice that the act caused to the creditor’s rights, the report accompanying the bill states that the “absence of prejudice” consists, for the debtor, in proving that his remaining estate is sufficiently ample, and that the conclusions reached by the case law on the revocatory action would be applicable.
In particular, the case law on the revocatory action holds, first of all, that “the total impairment of the consistency of the debtor’s estate” is not necessary, “the mere performance of an act that makes satisfaction of the claim more uncertain or difficult” being deemed sufficient[57]. Second, the existence of prejudice is to be verified at the time the act of disposition is performed and at which it can be assessed whether the debtor’s remaining estate is such as to satisfy the creditor’s claims, whereas the debtor’s subsequent financial developments, not directly connected with the act of disposition, are absolutely irrelevant for that purpose”[58].
As regards awareness, the case law on the revocatory action, with respect to acts performed after the credit arose, holds that the so-called general intent (dolo generico) to harm the creditor is sufficient[59]. The case law is also consistent in holding that proof of knowledge of the prejudice may also be provided by presumptions[60].
Some observations.
First of all, it should be recalled that the action under Article 2929-bis does not appear to be a revocatory action in the proper sense but a new action, so the transposition sic et simpliciter of the case-law principles developed with regard to the ordinary revocatory action will probably need to be verified. On the other hand, all the case law on the revocatory action concerns situations in which the burden of proof lay with the creditor, whereas here there is a reversal of positions, the burden of proof being shifted onto the debtor, who moreover must prove negative facts. The need might emerge to ascertain, in respect of the debtor, subjective aspects previously considered irrelevant; the need might emerge for a more careful enquiry, placing on the scales the different interests involved and considering whether those of creditors must necessarily prevail.
With regard to this provision, it should also be observed, a problem of balancing interests arises (a concept quite different from “reconciling” interests). The legislature has expressly taken a position in favour of the interests of creditors over any other interest worthy of protection. There are, however, interests that, as compared with those of creditors, have “constitutional” coverage (e.g. the interests of the family in the broad sense, interests that we might call “of solidarity”, the interest in retaining ownership of the home, at least the main residence, and the like). Article 2740 is no longer (and perhaps never was) a rule of public policy, although the explanatory report to the Code states that the debtor’s general liability for his assets was provided for in the interest of credit and of the economy.
Think of situations of disability, of the principles of solidarity and of the principle of subsidiarity. Against the legislature’s presumption that all debtors are always and in any event defrauders of their creditors stand situations in which the gratuitous transfer or the imposition of the restriction is, from the functional point of view, a means of “accompanying”, so to speak, one of the protective measures provided for by the legal system.
The gift of a home to a disabled person, a deed of destination for the benefit of a disabled person, expressly provided for by Article 2645-ter, a trust for the benefit of a disabled person: all operations that serve to meet the needs of the beneficiary, whose costs of protection are not placed on the community but remain with the private individual.
Yet such acts, if carried out after the credit arose, may fall under the axe of Article 2929-bis.
On the other hand, it does not seem that the provision allows the continuation of the enforcement to be prevented by showing that a specific interest to whose realisation the act is directed prevails over the creditor’s interest. At least on the literal level, it allows only the objection that the conditions referred to in the first paragraph are lacking or proof that the debtor was unaware of the prejudice that the act caused to the creditor’s rights (a prejudice that will, for the most part, be in re ipsa).
Preventing the assertion of the pre-eminence of the interest of such persons, and of the family interest, over the interest of creditors seems indeed a serious limitation of the right of defence, in breach of Article 24 of the Constitution.
A constitutionally oriented interpretation of the provision should therefore allow the opponent to put forward grounds of opposition in addition to those indicated by the provision[61].
8. The role of the notary
The position of the notary may be examined from two points of view: where he is asked to execute a deed of gratuitous transfer or one creating a restriction on disposal; or where he is asked to execute, within one year of the registration of the first act, a further translative act, whether onerous or gratuitous.
With reference to the first situation, the assertion that such acts must be considered ineffective ex lege for one year from registration, and that their execution is therefore in fact prevented by Article 2929-bis, does not seem shareable. Such ineffectiveness, as we have seen, is expressly excluded by the provision. On the other hand, I would observe, it is also true that it is extremely unlikely that there are people who are not debtors of someone. And given the high litigiousness characteristic of our country, it cannot be ruled out that the new provision, rather than reducing litigation, will increase it.
From the notary’s point of view, I would consider it very advisable for the parties to sign, before the deed, so-called informed consent as to the scope of the provision and the effects it produces, with a consequent exemption from liability. In my opinion, moreover, even in the presence of existing debt positions, the notary may not refuse to receive such deeds, as he is bound under Article 27 of the Notarial Law (l. not.). In any case, these are certainly not acts expressly prohibited by law under Article 28 of the Notarial Law. I would further exclude that the notary must insert clauses in the deed or that he must investigate the motives for the deed itself. Such an enquiry is neither permitted nor permissible, because it would be, to say nothing else, an enquiry into the financial condition of the author of the act, something that is not conceived of, nor conceivable, for any act[62].
With reference to the second situation, the question is quite delicate and depends first of all on resolving the problem of the position of the successor of the donee who has purchased within the year. If it is held that the provision derogates from the principles on registration for the period of one year and that there is therefore no safeguard even for the good-faith purchaser for consideration, the notary’s position will be identical. The mortgage search showing that the donated asset is not subject to attachment will therefore be entirely useless. It therefore appears evident that the provision will not benefit the security and speed of transactions and will make assets of donative origin even more immobile than they are by nature[63]. They will in fact not be capable of being the object of any act of disposal before the expiry of the one-year period from registration.
9. Conclusions. What future for asset protection?
It appears evident that the provision resolves a conflict of interests and that the legislature has expressly taken a position in favour of the interests of creditors over other categories of interests. In our legal system, in general, when the interest of the family comes into conflict with that of creditors, the former tends to prevail, since the 1975 family law reform “exalted” family solidarity and the protection of the assets of family members, including in relations with third parties. The purely pecuniary interest of creditors yields before the need to guarantee the fundamental rights of the person and, therefore, in particular, when there is a need to protect, also on the economic plane, the weakest members of the family community, in order to promote their full and free development. Only by regarding the protection of the family interest as pre-eminent can one explain the recognition of the possibility for spouses and third parties to establish the family assets fund, that is, a segregated estate intended “to meet the needs of the family” (Article 167 of the Civil Code), which cannot be attacked for debts “contracted for purposes unrelated to the needs of the family” (Article 170 of the Civil Code), among which fall, first and foremost, those assumed in the conduct of a business. This is a limitation of the asset guarantee in derogation from the general principle laid down by Article 2740 of the Civil Code, granted with the clear aim of facilitating spouses’ access to credit for meeting family needs[64]. There are indeed interests that have constitutional coverage (family, solidarity, disability – see in fact Article 2645-ter), and it is not clear why these should necessarily “yield” to the interests of creditors. The legal system would say the opposite[65].
With this provision, however, it is written in black and white that the interests of the family are of lower rank than those of any creditor.
Yet another provision dictated by contingent motives, completely unmoored from the system and oblivious to the existence of interests of constitutional rank such as those of the family, against which those of credit should be weighed on a case-by-case logic.
Hard times for asset protection?
Probably yes, because, it should not be forgotten, Italy is the country of the “furbetti” (the cunning), and the system introduced by Article 2929-bis seeks to take the ground from under their feet. One need only scroll through the case-law reports – as already noted above – to realise how many family assets funds, trusts and deeds of destination have been established exclusively in an attempt to remove assets from the attacks of creditors, beginning with the most important of them, namely the State.
The provision obviously also indirectly affects professionals. Some have written that all this is right, because too often professionals, including notaries, have been “bad” professionals[66]. One would then have to ask about the subject of efficient breach or the right to avoid performance, but the discussion would take us too far[67].
What may be observed is that every legislative intervention must be balanced and reasonable, and protection of the debtor only ex post, combined with the forced direct enforcement against the assets of a third party and the failure to consider the potential interests that may have justified the act, does not appear entirely reasonable and, therefore, balanced.
There is no doubt that we are in the presence of an epochal change, in which legal reasoning gives way to assessments based on macroeconomic criteria, which are here juridified, to logics in which the rights of individuals fade and lose relevance, in which, ultimately, ‘aggregate’ criteria prevail. What matters, in other words, is that the State and the banking sector speed up the recovery of credit in order to improve their own accounts. Social solidarity and the protection of the economically weakest groups take second place[68].
The impression, in short, is that the justification of the provision is tied to “financial interests” and that there is a complete lack of value-based balance/counterweight. To put it plainly, a provision founded on interests rather than (also) on rules and rights. And one need only read the latest judgments of the Constitutional Court, but also of the CJEU, to realise how there is a proliferation of arguments founded, precisely, on financial interests, with the risk of adopting decisions dependent on the prevailing interest of the moment, currently that of emerging from the economic crisis and saving the banks.
A not-so-rosy future, therefore, for asset protection, for the protection of fundamental rights, for the protection of weak parties.
A sign of the times, perhaps.
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