Abstract
[Autom. eng. transl.] The monograph deals with the phenomenon of collation, one of the most controversial institutions of inheritance law, both in terms of its foundation and the various application problems that it poses. The development of the work starts (in the first chapter) from the analysis of the elementary structure of the normative case and in particular of its subjective presuppositions, with a view to identifying the natural bed in which it is placed and bringing out the first data of comparison in order to account for the main theses of the doctrine regarding the legal nature and foundation of the institution. In the economy of the investigation, the exact identification of the contribution obligation and its implementation takes on a central position. In chapters 2 and 3, a detailed analysis of the different hypotheses of donative and non-donative donations is conducted, applying for each of them the criterion stated in the introduction, according to which for the purposes of collation the quid donatum should not be considered according to formal crystallization and static nature of the liberal act but by identifying the actual enrichment achieved by the beneficiary and co-heir. In relation to the classic hypothesis of the registration of assets in the name of others, it is highlighted that an abstract qualification that overlaps and ignores the singular data of the concrete case is not correct, so the identification of the donative enrichment will not always be given from the value of the property, having to consider further factors that may characterize the concrete hypothesis. Among others, particular cases are taken into consideration such as deeds of renunciation, attributions between spouses, free deeds with a liberal function. With regard to the latter, it is highlighted that the belonging of the attribution to the category of gratuitous acts cannot in itself exclude that it integrates a liberal function, therefore the concrete scope of the attribution and the lack of any interest of another nature on the part of the settlor. Chapter 4 deals with the implementation profiles of the collation relationship, in relation to which the problem of greatest complexity is given by the criterion for estimating the quid donatum for the purposes of identifying the contribution obligation. The legal criterion, which consists in assuming the market value of the asset at the time of opening the succession, does not always lead to a result that respects the principle of equality, as non-homogeneous effects are produced depending on whether movable or properties and depending on whether the contribution is made in kind or by attribution. In the investigation, some corrective measures to the regulatory criterion are hypothesized, extensively applying the articles. 749 and 750 c.c. to those hypotheses which would otherwise be subject to a probable judgment of unconstitutionality. Mainly highlighted as problematic objects are the shareholdings of unlisted companies and the "company" asset, for which the need arises to identify the possible improvement contribution of the donee, separating it from the result of the estimate conducted according to the legal criterion. In addition to the in-depth analysis of certain problematic hypotheses, such as that relating to the collation of money, chapter 4 offers a reconstruction of the implementation moment of the collation, highlighting the procedural links with the division. We can mention, as significant passages, those concerning the nature and effects of the contribution in kind, which according to the Author does not involve a double transfer from the donee to the estate and from the latter to the assigned co-heir; the problem of the implementation of withdrawals and the homogenization profiles of the estimation criteria; the possible relevance of contingencies that occurred between the opening of the succession and the defined division
Translated title of the contribution | [Autom. eng. transl.] Subject of donations and collection |
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Original language | Italian |
Publisher | ESI, Napoli |
Number of pages | 408 |
ISBN (Print) | 978-88-495-5204-1 |
Publication status | Published - 2023 |
Keywords
- collazione
- donazione
- liberaliltà