Le nuove tutele contrattuali dei legittimari nella circolazione giuridica

In this thesis we examine the necessary succession rules whose main feature is the particularly high protection of the forced heirs’ rights. In other legal systems also exist some forms of protection of the reserved portion, but not as intense as in our legal system. One of the clearest example of the level of protection of forced heirs rights is given by the fact that if the testamentary dispositions or donations exceed the portion which the testator can legally dispose of (the reserved portion), then the forced heirs have at their disposal a specific legal action “azione di riduzione” that permits them to restore the reserved portion. The intangibility of the reserved portion and the in rem quality of the legal action aimed at restoring the reserved portion, produces important consequences on the market transaction, since it’s capable of hindering the validity of payment contracts concluded even many years before. All these aspects have lead many scholars to question this kind of legal rules pledging for a reform of them. Another question that we have analysed is the so called “family pact”, which is a contract through which an entrepreneur transfer a productive good to a family member. These kinds of transactions are excluded from the applicability of the necessary succession discipline in order to guarantee the intergeneration transfers of the enterprise. The law has actually set up a double channel in the necessary succession area: from one side, in the case of productive goods, all the potential forced heirs can sign an agreement which upsets the general rule that all forced heirs have to receive goods belonging to the testator’s asset, and they can receive instead a sum on money corresponding to the value of the goods of the asset, they should have received. When a family pact is signed both the sum of money and the goods are in principle excluded from the legal action aimed at restoring the reserved portion. As a way of conclusion we could say that frequently the different solutions adopted in commercial law have opened new paths and new interpretations, leading to law reforms, that’s why we can say that the complex system of rules of the necessary succession could be modified, taking as an example the specific solutions adopted for the “family pact”.