The parents (now deceased) of a debtor of mine constituted years ago a patrimonial fund and at the same time donated him (in a spirit of liberality) to his son and daughter-in-law. Can I proceed against the debtor and for which routes (are in possession of an arbitration award, obtained prior to the establishment of the fund)?
The donation of the patrimonial fund to the child causes the limitation of destination on the donated property to cease: the latter does not maintain the protection conferred on him by the patrimonial fund constituted by the parents and, consequently, can be subjected to the lender’s executive action.
In other words, the assets assigned to the assets are donated, but the donations can not be transferred to the destination limits that the assets are involved in.
The debtor should re-establish the assets and confer the received goods as gifts: but, in such a case, within five years from the date of establishment of the fund, an ordinary revocatory action pursuant to Article 2901 of the Italian Civil Code would be possible.
Indeed, there is more: in accordance with the provisions of Law 83/2015 (which introduced Article 2929-bis of the Italian Civil Code), the creditor who sees their reasons jeopardized by an act of transfer of their assets by the debtor, such as the establishment of an equity fund, he can seize the assets transferred to the fund without first having to obtain a revocation sentence from the Court, provided that he has registered the attachment within one year from the date of publication of the deed of setting up the fund.
Naturally, the creditor will need the judge to sanction the liquidity, certainty and collectability of the claim claimed by issuing an injunction: the arbitration award in his favor can help in this sense, but it does not constitute a title to start a enforcement action against the defaulting debtor.
I would like to know on the basis of which precise rule, the donor of the estate fund should have set up a new fund, on the death of the donor, and what it means “to donate the assets transferred to the estate but can not be transmitted, with the donation, constraints of destination that the patrimonial fund involves.
The donation involves a transfer of ownership and the donated asset is no longer part of the assets.
Article 171 of the Italian Civil Code establishes that the balance sheet ends exercising the protection of assets conferred upon it following the annulment or dissolution or termination of the civil effects of marriage: the legal and destination on the assets transferred to the assets.
In practice, already at the death of one of the spouses who gave birth to the patrimonial fund, and the consequent dissolution of the marriage, the conferred goods are no longer protected by the assets and those owned by the deceased are transmitted to the heirs under Article 457 of the Code civil, except for the presence of minor children: if there are minor children, the fund lasts until the age of the last minor child is reached.