Strategies For The Preservation Of Family Heritage Between The Modern And Contemporary Ages Presented by: Prof. Dr. Gravina Date: 7 June 2024 Familia Immortalis - The ancient aspiration of men to achieve immortality has always clashed with bodily transience, with inexorable aging. with the gradual weakening of cognitive faculties. But over the centuries, another form of immortality has instead emerged, to compensate at least partially for the awareness of one's inevitable disappearance: that of heritage. - Ensuring that a person's assets can pass intact to sons, and from them to their descendants, and so on indefinitely; allowing the testator's will to project its shadow far beyond death, for centuries; this is the form of immortality that legal systems, since Roman law, have at least sought to ensure for elderly men who pursued the illusion that their name and lineage would not be extinguished, - Thus, the fideicommissum was born, with the associated fideicommissary substitutions, provisions by which the testator imposes on the heir the obligation to preserve the received assets to be returned, upon their death, to a person designated by the same testator (substitute, fideicommissary). - Widely spread in ancient Roman society, and regulated by its law, it was recovered in the Middle Age by Glossators and then by Commentators, such as Bartolo and Baldo: practical jurists, such as Socini, in the fifteenth century associated the fideicommissum with the prohibition of alienation, as a tool for protecting family heritage, with particular favor towards the firstborn: by the end of the century, the elaboration of the fideicommissum was complete, its validity until the fourth generation was commonly established, in favor of male descendants; however, in many cases, the testator extended the effects of his will until the total extinction of the family. - The encounter with the needs of modern feudalism ensured that the fideicommissum experienced considerable development in Western Europe between the sixteenth and seventeenth centuries, when the 'Spanish' model became established, linking it to the feud and the right of male primogeniture, the 'Mayorazgo', in line with the medieval prohibition of alienation: the perpetual succession of firstborn males from firstborn males was the dream of ancient feudatories, to perpetuate their lineage's vast wealth and prevent detrimental patrimonial divisions, to bind younger sons to the fortunes of the family. to believe that their coats of arms would forever adorn the buildings where they resided. - A very useful means for the purposes of contemporary society, especially noble, of lands tied to the Iberian monarchy: especially for those considered the most representative assets, such as the palace in the city, the villa in the suburbs, the feuds in the countryside. - To transmit them intact along this endless chain through the centuries, without suffering the shame of a sale that would forever mark the respectability of the lineage, and avoid patrimonial divisions within the family, in favor of younger sons, daughters, or the surviving spouse. - The volume of fideicommissum, and the problematic cases they induced, generated considerable litigations, which began to nourish treatises of practical jurisprudence, simultaneously deepening doctrinal elaboration on the subject, favoring the family fideicommissum, with the associated right of primogeniture. - The fideicommissum could be natural, civil, regular (following the principles of the precedence of line, degree, sex, age), or irregular; the heir was recognized a right of usufruct with some peculiarities, such as the obligation of inventory, as evidenced by works dedicated to the subject by Peregrino, Mantica, De Luca. - The seventeenth century saw the maximum expansion of the fideicommissum, especially in Italy. particularly in the South and in Lombardy, traditionally linked to the Iberian monarchy: it was also used by other well-off persons intent on emulating aristocratic families, but whose fortunes were not always adequate to sustain the heavy burdens. - The cultural revolution of the Enlightenment harshly attacked the system of fideicommissum, considered an obstacle to the free circulation of assets, their marketability. and investments in agriculture, since burdened heirs had no incentive to improve their lands, preferring to enjoy their fruits while having to pass the vast majority of the heritage intact to heirs. - Montesquieu, Muratori, Genovesi, Beccaria, Flingier, railed against these provisions that crystallized patrimonies, preventing their fruitful use for the entire society. - The consolidations of the eighteenth century absorbed these new ideas, attempting to downsize and limit fideicommissum: the Laws and Constitutions of the Kingdom of Sardinia of 1723 established their duration only up to 4 generations, and only regarding real estate; in Austrian Lombardy, in 1786. Joseph II banned the establishment of new constraints and ordered the capitalization of existing ones; Francis I of Lorraine, Grand Duke of Tuscany, with a law of 1747 set some limits, like in 1782; then banned the establishment of new fideicommissum in 1789. - Enlightenment ideas about the fideicommissum, as in many other cases, were implemented by the French Revolution, whose institutions, in 1792. abolished fideicommissary substitutions. Fideicommissum and Codification - The first age of codification knew two different paths. - The French Civil Code of 1804 expressly prohibited it (although later, in the revision of the Code carried out in the imperial age, Napoleon in 1806 reintroduced the right of primogeniture for his new nobility), - As Stendhal wrote "Le Code civil arrive rapidement à tous les millionaires, il divise les fortunes, et force tout le monde à valoir quelque chose et à vénérer l'énergie". - On the contrary, the Austrian Civil Code (ABGB) maintained the existence of the fideicommissum. - The Codes of the pre-unification Italian States of the Restoration restored fideicommissum and primogenitures, but with some limits, generally only for one generation: like in the Kingdom of Sardinia, in the - Papal State, in the Kingdom of the Two Sicilia’s, in the Duchy of Parma who followed the Austrian model. - The reformism of the Kingdom of Sardinia subsequently launched another heavy attack on the faltering fideicommissum: with a law of 1851 it was abolished, with half of the assets attributed to the instituted and the other half to the substitute. - The Unification of Italy saw among the first draft bills that of 1861 for the abolition of fideicommissum and rights of primogeniture in the Lombard, Neapolitan, and Sicilian provinces, later withdrawn in 1864; the effective abolition had to wait for the promulgation of the Civil Code of 1865, which prohibited substitutions, maintaining the value of the institution of heir. Doctrine sought to limit the abolitionary effects of the norm, affirming the validity of the fideicommissum de residuo, i.e., that regarding assets not sold during the life of the instituted. - In Spain, the fideicommissum was included, in the form of fideicommissary substitution for one generation or 30 years, in the Civil Code of 1889; it was also accepted in some South American Codes, such as the Civil Code of Argentina, Colombia, and Guatemala. - The Bürgerliches Gesetzbuch (BGB) admitted fideicommissary substitution only after 30 years following the disposer's succession; the Swiss Civil Code of 1907 prohibited the establishment of new fideicommissum but left intact those already in force. The Resurrection Of The Fideicommissum - When the fideicommissum seemed destined for disappearance or at least a strong downsizing, the Italian Civil Code of 1942 resurrected it, in the form of family and charity fideicommissum: was established the obligation to return the inheritance to a designated third party at death, seen as an effective tool for the preservation of the inheritance, in a solidaristic and family-oriented perspective, overcoming the bourgeois individualistic model that had condemned the institution. The substitution was allowed within the limits of the disponible portion of the inheritance, in favor of all the sons of the instituted, for only one generation. Substitution could also be made in favor of a public entity, for assistance and charity purposes. - The preparatory work for the new code had started towards completion in 1939, with projects on the book of successions. Fulvio Maroi was the rapporteur of the preliminary project: according to the jurist, "social conscience" was favorable to the restoration of the fideicommissum, as was jurisprudence and part of the doctrine. - Maroi imagined a "corporate family," in line with the corporatist economic model of the fascist regime. - The main problem posed de iure condendo was the attribution of ownership of the assets and the related qualification; in the commission, there was talk of limited and resoluble ownership or recognition of a useful property. For the Minister of Justice, the instituted would not have been the owner of the assets, recognizing a deep analogy between him and the usufructuary. - The discipline of the new Civil Code of 1942 did not, however, achieve much success; for some time after the promulgation of the code, recourse to the fideicommissum de residuo continued. - This system remained in force until the important reform of Italian family law in 1975. which allowed the survival of the family fideicommissum only to protect persons with disability, providing that the testator could dispose that their assets, after the death of the descendant, go to the person who had taken care of them; thus, only the assistance version remained, in favor of a disable person or a minor, At the death of the instituted, the assets then automatically pass to the substituted. - What remains today of the fideicommissum, beyond this marginal possibility, in truth little used in practice? The need to project post-mortem one's ideal of family and the related socio-economic order has certainly not ceased, despite legislative prohibition. For example, many of the ancient fideicommissa have survived, transformed in Italy at the end of the nineteenth century into Public Institutions of Assistance and Charity (IPAB). - Certainly, traditional wealth arrangements have changed profoundly, but there are still contexts where the desire to maintain within family ties assets of a particular type, such as cultural heritage, historical buildings, art collections, manifests itself. - For these purposes, today, the Foundations, or the Trust (of Common Law practice), are looked like institutions more open to listening to concrete family experiences, always present and current, and with some similarities to the ancient fideicommissum. - (Trust was recognized in Italy thanks to the Hague Convention of 1985, made enforceable with an Italian Law of 1989).