LA SUCESIÓN EN LA EMPRESA FAMILIAR.

Abstract

Paragraph 2 of article 1056 of the Civil Code empowers a testator to carry out the partition of his or her estate in such a way as to safeguard an economic undertaking from division or maintain a controlling interest in a corporation or corporate group. The testator can adjudicate the enterprise in question or the set of shares or corporate holdings at issue to an individual, ordering the legitime and the legacy of other holders of some interest in the succession converted into cash. With an outlook toward facilitating generational succession in business and preserving enterprises from division, paragraph 2 of article 1056 was amended thanks to Spanish Act 7/2003 of 1 April on the «New Enterprise» limited company. The amendment, however, left a number of questions of indubitable practical bearing unresolved. For example, it neglected to specify what individuals can receive adjudications and who must be understood to be included in the expression «other holders of some interest»; it said nothing about what will happen with an adjudication when the property at issue is community property; it failed to explain what must be understood by «conservation of the enterprise» and «interest of his or her family» as grounds for adjudication, as pertains to the adjudication winner's payment of the legitime and the legacy of the other holders of interests; nor did it indicate the point in time that applies in the setting of the quantum, nor did it mention the possibility of splitting it; and lastly it omitted any reference to the possibility whereby «other holders of some interest» might use registration to guarantee their right from the opening of succession proceedings until actual payment. These, as stated, are the main issues suggested by the topic of succession in the family enterprise. In the study we present, these issues receive a well-pondered, sufficiently reasoned answer that the reader may disagree with but will never be able to attack as wanting in arguments.