EL PATRIMONIO DE AFECTACIÓN PROFESIONAL EN EL DERECHO FRANCÉS. ¿EVOLUCIÓN O REVOLUCIÓN EN LA TEORÍA DEL PATRIMONIO?

Abstract

In times of crisis the rule of unlimited personal liability curbs the plans of entrepreneurs, who see that if business goes badly they could lose all their assets, including the family home. For this reason some of Spain's neighbours have created devices enabling individuals in business to limit their business liability to only those assets devoted to the business. Such is the case of the "limited-liability individual entrepreneur" created in France by the Act of 15 June 2010, in a sharp departure from the classic postulates of liability theory. It is obviously advisable for Spanish legislation to include some such institution, but the advisability of the result cannot conceal the fact that the legal instrument at issue is one of great technical complexity and affects different realms of legislation. Therefore, extremely nice legislation must be crafted to prevent the device from being doomed to failure from the start. The design of the assets in each liability group, the porosity between the two groups and the potential effect of supplementary personal guarantees or collateral furnished by the entrepreneur to creditors are issues that will determine whether the new arrangement is a success or a failure. Looking closely at how it has been regulated in France and what the device's weaknesses are can help us fine-tune legislative technique and strike the tricky but possible balance of all the interests involved: entrepreneurialliability that is limited without stifling access to credit.