Problem raised by the partition carried out by the testator himself in the field of family business

Abstract

One of the main problems that arises in the field of family businesses is the one related to the process of replacement in leadership and ownership, which must be carried out in a coordinated manner to be fully understood. The property must be distributed in a manner appropriate to the choice of the leader, which, together with the system of legitimate shares regulated by our Civil Code, entails the need to compensate others, to avoid their injury.

Succession planning will bring important benefits, since the necessary continuation of the business requires a fluid move that allows reducing risks by having identified the future leader, who must be prepared to assume the responsibilities that concern him, but also, to avoid the paralysis of the operation of the company, and its decomposition in the case of there being a plurality of successors.

Precisely, to avoid this disarticulation, the precept that we examine allows, via partition, to attribute the company to a single person. This is a useful way to preserve family businesses, but it is necessary to go into it in more depth, proposing a series of reflections that alert us to the consequences that arise.

Thus, this study is dedicated to the problem posed by the partition carried out by the testator and its connection with the scope of the family business. It will analyze its most significant elements, the position of the successful bidder of the company, the situation of the rest of the interested parties, how the payment of the legitimate portion will be made, what guarantees exist for it whether we should rely on other legally convincing mechanisms, such as contractual succession in Catalan law or the patto di famiglia in Italian civil law, to analyze what contributions could be made to preserve the family business.