Strumenti alternativi al testamento negli ordinamenti italiano e tedesco

Abstract

This discussion relates to the identification of devices contractual in succession function which can validly be used in the alternative of the will, in the trans-generational transmission of wealth. In this perspective, this essay offers a wide and critical interpretation of those rules of the italian law of succession, particularly the prohibition of succession agreements in art. 458 c.c., which prevent the full unfolding of private autonomy in the field of inheritance law and seem to be in conflict with the deeply changed social system. The essay is first directed to the careful examination of the justifications of the current classic limit of the art. 458 c.c. in Italy and to the comparison with different approach to the succession agreements of the German law, which generally accepts the figure of the so called “Erbvertrag”. The analysis presents some considerations on the limits the of the current structure of the law of succession in Italy and on the technical methods and the evolving interpretation through which the inheritance mechanism becomes viable. The “Family pact” Law wich was recently introduced in the italian legal system as an alternative opportunity to manage the “transfer” of family business, the character of disuse currently assumed by the will and the growing creative commitment of the negotiating practice in perfecting devices contractual in succession function show that Italian law is trying to reorganize itself to meet the needs of a society facing the challenge of trans-generational transfer of property. [edited by Author]