University:
University College London
Course:
LAWS0002 | Property Law I
Academic year:

2024
Views:

347

Pages:

2
Author:

Nam B.

Instruments For Preserving The Unity Of Family Businesses And Agricultural Assets Presented by: Prof. Dr. Ilyés Date: 7 June 2024 = Fideicommissary Substitution - Disponer → Institute → Substitute - 1817 Calimach Code → multiple successive heirs; - Restriction of the free transfer of property; - Predeterminate succession order for future generations. Historical Background - French model → Revolution: 14. November 1792 prohibition of fideicommissary substitution (French Code civil of 1804, sanction: nullity); - Art. 803 of the 1864 Romanian Civil code: "Substitutions or trusts are prohibited; any provision by which the donor, the heirs of the institute or the legatee, shall be charged to preserve and remit to a third person, shall be void, even as regards the donor, the heir appointed or the legatee." - Fideicommissary substitution was considered an anachronistic institution. The Period Of Ban Of Fideicommissary Substitution - 1. Moral obligation → substitution based on faith; - 2. Bequest of remainder (legacy de residue); - 3. Double conditional bequest. Revival Period - 2011: current Romanian Civil code entered into force fideicommissary substitution not outdated anymore. - The legislator noted the anachronistic nature of the provisions which completely prohibited fideicommissary substitutions! - New rules for the institution of fideicommissary substitution: - Art. 994 para. (1): "A liberality may be encumbered with a charge consisting in the obligation of the institute, done or legatee to administer the property forming the object of the liberality and to pass it on, upon their death, to the substitute appointed by the disponer." Fideicommissary Substitution: A Legal Mechanism For Maintaining Family Control In A Company - - Family companies → fideicommissary substitution: • Preserve the familial nature of company; • Control and ownership remains within family 1+1 generations; Family constitution • Provide stability: control and ownership remains within family 1+x generations; • Smooth transition of leadership; • Long term continuity and identity of the family company.