On the communion de residuo: juridical nature, main characteristics and application problems

Abstract: The United Sections therefore affirm the credit nature of the right on the assets subject to the communion of the residual, recognizing a right of sharing on the credit plan, equal to half the amount of the money or the fruits object of the communion of the residual, or of the countervalue of the corporate assets and any increases, net of liabilities. In the case of a company attributable to only one of the spouses established after the marriage and falling under the so-called residual community, at the time of dissolution of the legal community, the other spouse is entitled to a credit right equal to 50% of the value of the company, as an organized complex, determined at the time of termination of the legal property regime, and net of any liabilities existing at the same date

Summary: 1. Introduction – 1.1. The facts of the case – 2. The arguments of the United Sections: between real right or a credit right – 3. Conclusions

1. Introduction

The United Sections, called to resolve a matter of the utmost importance, pronounce themselves on the nature of the right, at the time of the dissolution of the legal community, due to the spouse who is not already the owner, in relation to the assets forming part of the residual community, which are still existing on that date, according to the articles 177 lett. b) and c) as well as 178 of the civil code.

The legal situation that is the subject of the initial dispute concerns the classification of the right due to the non-entrepreneurial spouse on the assets owned by the other spouse, purchased by the latter (not as personal assets) and intended for the exercise of his entrepreneurial activity, as well as on the related company increases and on profits, relating to the sole proprietorship set up by the same after the marriage in force under the legal property regime, to be evaluated at the time of their personal judicial separation.

The interlocutory order (of the civil Section II, n. 28872/2021) as well as the judgment of the civil United Sections in question (n. 15889/2022) retrace the main doctrinal and jurisprudential opinions on the matter, highlighting in particular how the magistrates, also of legitimacy, have not before now addressed the question with due consideration.

In terms of residual communion, in compliance with the regulatory data, there is usually agreement in assigning the right of the other spouse a deferred nature (it occurs at the time of the dissolution of the legal communion) and eventual (arises only if at that date the assets concerned are still present in the assets of the existing spouse). However, from the point of view of its legal configuration, the Supreme Court recalls how, over time, in addition to two more articulated proposals, two opposing general orientations have mainly developed: the theory of real law and that of credit law.

According to the first conception, on the date of termination of the legal regime, a co-ownership automatically occurs between the spouses on what is subject to the residual regulation, who become owners of the property in community ordinary, in equal parts.

This classification was endorsed by the Court of Cagliari (November 5, 2003) in relation to the first degree of the case under analysis, which accepted the claim of the plaintiff, a spouse who does not carry on an entrepreneurial activity, recognizing the right of property for the 1/2 share of the disputed assets.

In retracing the previous positions of the jurisprudence, the Cassation finds that this position has been supported by the same Court on other occasions (Cass. n. 2680/2000; Cass. n. 7060/2004; Cass. n. 19567/2008; Cass. no. 13760/2015).

In balancing the interests involved, the real nature of the right due to the other spouse attributes particular importance to family solidarity, in harmony with the spirit of the Family Law Reform of 1975, aimed at protecting the family nucleus (Article 29 of the Constitution ) and the principle of equality (art. 3 of the Constitution), now also extended to other models (see Law no. 76/2016 and art. 2 of the Constitution). As can be seen from the provision in question, the direction of the reality is motivated by virtue of a series of factors:

– the literal tenor of the provisions, which suggests that the actual case is in favor (article 177 of the civil code provides for the wording «They constitute an object of communion» and article 178 of the civil code that «they are considered an object of communion »);

– the art. 192 code civ., which regulates the refunds and restitutions to be made upon termination of communion, does not take care to recall the cases subject to attention, soinferring the exclusion of the existence of a right of claim in such circumstances;

– the hermeneutical advantage of unifying the problems of the juridical nature and of the normative treatment of the (already) immediate and deferred communion, in the phase following the dissolution of the legal regime;

– the right in rem offers greater guarantees to the other spouse, who, by becoming co-owner of the thing, would avoid competition with the other spouse’s creditors, which would occur if his right were instead of a mandatory nature, due to the lack of a privileged nature of the credit.

As for the communion of the residue inherent in the corporate elements of the enterprise of one of the two spouses, some clarifications are made:

– the attribution of a mere pecuniary credit would frustrate the expectation of the non-operating spouse to participate in the further increase in value of the company assets that occurred after the dissolution of the legal communion;

– the non-entrepreneurial spouse remains unaffected by liability for debts arising from the entrepreneurial activity, the significance of which can only be explained for the purpose of determining the net value of the company assets, since the right in rem is calculated on the value of the assets minus the debts arising in period prior to the cessation of the statutory property regime.

This vision is opposed by the credit perspective, according to which, at the time of the dissolution of the legal community, the other spouse is entitled to a credit right, to be assessed on that date, equal to 50% of the amount of the fruits or the proceeds of the residual , or the value of the corporate assets and/or the related increases of the company subject to residual communion, net of liabilities.

This reconstruction is adopted, with regard to the case in question, by the Court of Appeal of Cagliari (n. 557/2019) as well as by the United Sections, which recall how this option was also supported by other rulings of the same Court of legitimacy (Cass . n. 7060/1986; Cass. n. 4533/1997; Cass. n. 42182/2010; Cass. n. 6876/2013; Cass. n. 4286/2018).

According to the judges in their highest training, in favor of the law of a compulsory nature militates the need to balance the needs of family solidarity, albeit quantitatively guaranteed, with other rights of equal constitutional dignity, such as the protection of private property (articles 41-42 of the Constitution .) and remuneration for work (Article 35 of the Constitution). The arguments put forward in support are as follows:

– the literal datum, which represents the most solid motivation reported by the opposing approach (1), does not seem insurmountable, if one observes that the verb «to consider» used by art. 178 code civ., rather than “being” used by art. 177 code civ., denotes a semantic ambiguity that could be traced back to a precise desire to submit the communion of residues, and especially that of a company, to a regulatory regime different from the ordinary one which connotes assets destined to immediately fall into legal communion (2); in this sense, the canon of art. 12 of the pre-laws, according to which the letter of the norm is an insurmountable limit of interpretation, which is a perceptive and receptive tool and not also a corrective or substitute of the voluntas legis;

– the omission in the art. 192 code civ. of the credit held by the spouse who is not already the owner is justified by the exhaustiveness of the discipline of the community of the residual in the specifically dictated rules;

– a solution which imposes an increase in the economic ties between the two spouses is devoid of rationality precisely when events have occurred which should instead lead to their termination.

1.1. The facts of the case

The facts of the case concerned the dispute resulting from the termination of the civil effects of a marriage with creditors regarding the entitlement to assets instrumental to the exercise of an entrepreneurial activity, headed by a company, of which the spouses held shares equal to the 55% and 45%: in particular, the purchase is debated as having taken place under the legal community regime, or outside of this, i.e. considering the assets as necessary for the exercise of the profession of the managing spouse only. In the latter case, upon dissolution of the legal community, the aforementioned assets should fall into the so-called residual community.

The judicial matter culminated with an appeal to the cassation and the Second Civil Section, which was invested with it, with interlocutory order n. 28872 of 19 October 2021, deferred the appeal to the First President in view of the possible referral to the United Sections of the question of utmost importance relating to the legal nature of the so-called communion of residue, given that both in doctrine and in jurisprudence the thesis which attributes to the non-entrepreneur spouse a credit right – equal to half of the value of the company at the time of the dissolution of the communion – and the one which instead opts for the recognition of a right of participation in the ownership of individual assets.

The interlocutory ordinance carried out a survey of the jurisprudence on the matter and offered an overview of the main orientations of the doctrine, which roughly reproduce the contrast between the real and mandatory nature of the law in question, with the clarification, by those who adhere to this latter solution, that the right would be equal to the difference between half of the value of the other’s assets – determined with reference to the goods pursuant to art. 177, lett. b) and c), cc, as well as possibly pursuant to art. 178 cc – and half of its mass equally destined to the residual communion (values, these, which, according to this second thesis, should be calculated once the respective personal debts have been deducted).

2. The arguments of the United Sections: between real right or a credit right

The United Sections note, preliminarily, how the doctrine has seen a significant contrast between the two theses referred to in the referral order, since the entry into force of the family law reform which introduced the institution of legal communion, with the its sub-hypothesis of the communion de residuo, since the uncertainties are favored by a non-perspicuous literal formulation of the norms and by a meager discipline on the part of the legislator, who left it up to the interpreters to resolve the doubt objectively posed by the provisions dictated in this regard.

According to the College, ascertaining whether it is a real right or a credit right becomes relevant and affects not only the position of the spouses, but also in relations with third parties and above all with the creditors of the entrepreneur (3) spouse, in particular in the case in which the debt situation has led to the onset of insolvency proceedings.

It is recalled that the doctrine that supports the real nature of the right of the non-entrepreneur spouse on assets falling within the category of the so-called communion of residue draws its main argument from the letter of the law which, for the hypotheses referred to in art. 177 lett. a) and b), provides that the goods concerned “constitute the object of the communion”, and in art. 178 of the civil code, (as for the company managed only by a spouse), provides that the assets intended for the running of the company (if established after the marriage) and the increases of the company (also established previously) “are considered to be the object of the community ”, provided that they still exist at the time of the dissolution of the legal community.

The semantic choice of the legislator, for this thesis, would then be more in conformity with the structure and ratio of the institution, as if a sacrifice is justified for the interest of the spouse who owns the de quibus assets in the permanence of the legal communion regime, in order to ensure the full availability of the income produced and of the increases, as well as the freedom in the management of the company assets pursuant to art. . 178 cc, this sacrifice cannot continue once the regime of legal communion ceases to exist.

The consequence of this approach is that the assets in question, without ever passing through those subject to the regime of legal communion (with the specific rules of administration and management), fall directly into ordinary communion.

Furthermore, the Board points out that this solution would then be supported, again on a literal level, by the observation that art. 192 of the civil code, while regulating the reimbursements and restitutions to be made between spouses when the legal patrimonial regime of the family ceases, nothing provides for the assets object of the community of residual, from which the exclusion of the existence of a right of credit should be deduced , as a consequence of the discounting of the spouse’s right on the assets subject to the residual community.

And, in fact, it is stated that the assets in question, to be considered personal assets “manente communione” legally, automatically become common assets, thus offering greater guarantees also to the spouse, who, by becoming co-owner, would avoid competition with the other spouse’s creditors , which instead it would suffer, if the opposing thesis were accepted.

The United Sections add that among the authors in favor of the real nature of the right of the spouse, we also note the position of those who reiterate that a community would be created only in relation to goods, but without the same also implying a participation in the activity business carried on by the other spouse, thus remaining unrelated to the liability for debts arising from the entrepreneurial activity, the relevance of which can only be explained for the purposes of determining the net value of the company assets, being the real right to be calculated on the value of the assets at net of debts contracted prior to the dissolution of the communion.
On the other hand, the Board reports the position of the proponents of the thesis of the right to credit, to be commensurate with half of the net assets of the company or of the company increases accrued up to the moment of the dissolution of the legal communion, but purified of any liability company: according to these, the letter of the law would not be insurmountable, which precisely due to the use of the verb “to consider” denotes how well it could underlie a non-full equivalence of the regime of these assets to that prepared instead for those immediately subject to legal communion .

According to this thesis, in fact, a solution that would impose the emergence of a communion on certain assets precisely at the moment of the dissolution of the legal communion would be devoid of rationality and comprehensibility: the fall into communion of the company would also imply the takeover of the non-entrepreneur spouse in liability for previously contracted debts (and this according to some by applying Article 2560 of the Civil Code, a provision deemed susceptible of extension to the case in question as well) thus potentially exposing him to unlimited liability, which would also involve his personal property, without the limit of the value of the assets in communion of the residual being able to oppose it.

The Board recalls another argument in favor of the mandatory nature, i.e. the one that overall enhances the needs of the company, both from the side of the entrepreneur spouse and from that of the company’s creditors: the disappearance of the legal community regime, while determining the The arising of the residual communion does not in itself imply the dissolution of the sole proprietorship, which therefore could very well continue to be operational also for the following period. Therefore, if it appears legitimate to make the non-entrepreneurial spouse share in any advantages and increases produced by the other spouse’s activity, as a counterpart to the former’s different contribution to the family regime, the birth of an ordinary communion would however risk completely nullifying the commitment previously made by the second. According to this reasoning, the managerial rules of the communion would then impose that every choice relating to corporate assets cannot disregard the consent of the other communist, with the risk of reaching the paralysis of the entrepreneurial activity and furthermore, if as a result of the division, the common goods turn out to be not easily divisible, the same, in the absence of the provision of a cause of pre-emption in favor of the entrepreneur spouse, as instead provided for by art. 230 bis of the Civil Code for the family business, could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests the attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself. the management rules of the communion would then impose that every choice relating to corporate assets cannot disregard the consent of the other communist, with the risk of reaching the paralysis of the entrepreneurial activity and furthermore, if, as a result of the division, the common assets turn out to be not easily divisible, the same, in the absence of the provision of a cause of pre-emption in favor of the entrepreneur spouse, as provided for by art. 230 bis of the Civil Code for the family business, could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests the attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself. the management rules of the communion would then impose that every choice relating to corporate assets cannot disregard the consent of the other communist, with the risk of reaching the paralysis of the entrepreneurial activity and furthermore, if, as a result of the division, the common assets turn out to be not easily divisible, the same, in the absence of the provision of a cause of pre-emption in favor of the entrepreneur spouse, as provided for by art. 230 bis of the Civil Code for the family business, could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests the attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself. with the risk of reaching the paralysis of entrepreneurial activity and furthermore, where as a result of the division, the common assets prove to be not easily divisible, the same, in the absence of the provision of a pre-emption cause in favor of the entrepreneur spouse, as instead provided for by art. 230 bis of the Civil Code for the family business, could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests the attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself. with the risk of reaching the paralysis of entrepreneurial activity and furthermore, where as a result of the division, the common assets prove to be not easily divisible, the same, in the absence of the provision of a pre-emption cause in favor of the entrepreneur spouse, as instead provided for by art. 230 bis of the Civil Code for the family business, could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests the attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself. for the family business, they could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests their attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself. for the family business, they could also be assigned to the non-entrepreneur spouse, or, in the event that none of the sharing parties requests their attribution, be alienated to third parties pursuant to art. 720 of the civil code, thus favoring the dissolution of the company itself.

The thesis of the mandatory nature, then, also considers the protection needs of the company’s creditors, who have relied, also in view of the granting of credit, on the size of the company considered to be the exclusive property of the entrepreneur and who, as soon as once the legal communion has been dissolved, they would see the patrimonial guarantee of their credit reduced by 50%, due to the onset of the co-ownership right in favor of the non-entrepreneur spouse. A similar difficulty would also arise in the event that the dissolution of the legal community is determined by the bankruptcy of the entrepreneur spouse, given that in this case, due to the creation of the community, only 50% of the company could be included in the bankruptcy assets.

Furthermore, the United Sections take account of an intermediate solution adopted by the other part of the doctrine (4), which believes that the answer varies according to the asset to which the institution relates, or distinguishing according to the different cause of dissolution of the legal communion: the nature real of the law should be affirmed only for goods pursuant to articles 177 b) and c) of the civil code and 178 of the civil code, only if the dissolution of the legal communion takes place because the entrepreneur passed away, definitively or temporarily (death, even presumed, absence), having instead to adhere to the thesis of the right of credit for all the other hypotheses. A variant of this thesis is the one that instead believes that, in view of the substantial protection of entrepreneurial freedom, the credit solution should be affirmed for company assets and increases, while the real one for the profits deriving from the entrepreneurial activity and for the fruits and proceeds pursuant to art. 177 b) and c) of the Italian Civil Code, this solution being more faithful also to the provisions of the law.

The Board then continues with an examination of the jurisprudence, which equally denotes a similar difference of views, oscillating between the real nature and the credit nature of the law in question.

Therefore, in the light of the doctrinal-jurisprudential reconstruction carried out, the United Sections affirm that the question object of the referral order is still today among those most debated, even though more than forty years have elapsed since the 1975 news, following which the communion the legal matrimonial property regime has become legal (also applicable to civil unions between persons of the same sex, pursuant to article 1, paragraph 13, of law no. 76/2016, and is also accessible to de facto cohabitants, subject to certain conditions).
The College points out that the goal of the legislator was to provide a discipline that would operate a necessary and balanced balance between some principles, all of constitutional rank and, as such, equally worthy of protection, such as the protection of the family (art. 29 of the Constitution), the principle of equal equality of citizens (art. 3 of the Constitution), freedom of economic initiative (art. 41 of the Constitution), remuneration for work (art. 35).

The answer was therefore to provide alongside the assets that fall into immediate communion, and that enter the common patrimony at the time of their purchase, a series of assets that fall into the residual communion, thus remaining personal during the validity of the patrimonial regime legal, but who are attracted to the discipline of the legal communion to the extent that they exist at the time of the dissolution of the communion (there is then a series of assets that arise as personal and remain so even once the legal communion has ceased).

According to the Board, in order for the right of the other spouse to arise over said assets, however, it is necessary that the same actually and concretely exist in the spouses’ assets at the time of the dissolution, so that the establishment of a situation of communion of the residual is configured in the reform system as an event that is uncertain in the year, as it is subordinated to the circumstance of the existence of the residuum at the time of the dissolution of the legal communion, and also uncertain in the quantum, since the co-ownership would concern exclusively that part of the assets that remain at the end of the regime legal assets.

The Court recalls that the identification of the assets covered by the so-called communion of residue is taken from articles 177 lett. b) and c) and 178 of the civil code, which however differ in their literal wording, since while the art. 177 provides that the assets contemplated therein “constitute the object” of the communion, if and insofar as they exist at the time of dissolution, in art. 178 of the civil code, assets intended for running a business set up by one of the spouses after the marriage and the increases of the business, even previously set up, «are considered to be objects».

The regulation of personal assets and that specifically dictated for the assets covered by the so-called communion de residuum testify to the evident emergence, even within a regime inspired by the protection of solidarity needs between spouses, of the need to attribute importance also to legitimate individual aspirations, which could not be entirely mortified, and this because the In any case, marriage presupposes the recognition of the person and his or her sphere of autonomy as a primary value that juridical institutions are called to implement, above all where the individual activity is aimed at the exercise of the business or professional activity.

The Board observes that from the comparison between the provision pursuant to art. 178 and that referred to in art. 177 co. 1 lit. d) and the last paragraph of the same art. 177, it can be seen that the decisive element for distinguishing, as regards the company, between assets destined to fall immediately into communion and those instead reserved for the communion of residues, is represented by the common or individual management of the company and, moreover, that the he identification of the assets subject to the communion of residuals bears witness to the legislator’s effort to achieve a desired balance between the principle of solidarity, which should inform married life (Article 29 of the Constitution), on the one hand, and the protection of private property and remuneration for work, on the other (articles 35, 41, 42 of the Constitution).

It should also be noted that with specific reference to the goods pursuant to art. 178 of the civil code, there is also the aim of not involving the non-entrepreneur spouse in the position of unlimited responsibility of the other, ensuring the latter full freedom of action in the exercise of his business activity.

Therefore, for the United Sections, the need to ensure coordination between the innovations introduced by the reform of family law and the pre-existing system of codes cannot be overlooked, which in its fundamental lines is aimed at favoring the autonomous and free availability of resources, as well as the principle of the circulation of values and the maintenance of productivity levels, which cannot suffer excessive obstacles due to the choice in favor of the regime of legal communion (5).

Furthermore, it is highlighted how the legislator intended to guarantee, as long as the legal communion lasts, to the entrepreneur spouse the power to manage the business, investing the profits as he pleases, and disposing of the company’s assets and profits in the most free way: in it follows that the assets subject to the communion of the residual cannot be considered common, at least until a cause for dissolution of the legal regime has occurred (and not counting for this purpose only the cessation of the destination of the assets to the company or the loss of the status of entrepreneur in the hands of the spouse).

Therefore, the Panel observes how family solidarity needs have been in part considered recessive in the face of the need to ensure the satisfaction of other competing rights of equal constitutional dignity and how this leads to favor the thesis of the credit nature of the right on the assets covered by the communion of residuals, thesis which, without nullifying the expectation claimed by the spouse on the assets in question in terms of assets, guarantees the permanence of the availability of the fruits and proceeds and management autonomy, as regards the company, for the other spouse , in the cases envisaged by art. 178 of the civil code, also avoiding prejudice for the reasons of the creditors, thus allowing the survival of the company, and without the events of the spouses having a direct impact on the fate of the same.

The United Sections therefore affirm the credit nature of the right on the assets subject to the communion of the residual, recognizing a right of sharing on the credit plan, equal to half the amount of the money or the fruits object of the communion of the residual, or of the countervalue of the corporate assets and any increases, net of liabilities.

3. Conclusions

In conclusion, the Court of Cassation, in United Sections, with sentence no. 15889/2022, affirms the following principle of law: “In the case of a company attributable to only one of the spouses established after the marriage and falling under the so-called residual community, at the time of dissolution of the legal community, the other spouse is entitled to a credit right equal to 50% of the value of the company, as an organized complex, determined at the time of termination of the legal property regime, and net of any liabilities existing at the same date”.With particular regard to the deferred communion of corporate elements relating to the business of one of the spouses, the Massimo Collegio presents a series of reflections:

– also following the last reasoning now developed, any expectation of the non-entrepreneurial spouse towards future increases in the value of the company assets is not justifiable, given that, with the termination of the legal regime, those solidarity requirements that form the basis of the claim to co-participation no longer exist the fortunes of the entrepreneur spouse;

– communion in the real sense is difficult to reconcile with the connotation, even immaterial (think of goodwill), of the category of “increases” pursuant to art. 178 code civ.;

– the majority of supporters of reality believes that the communion arises on the «active balance of the company assets», a notion which, on the one hand, as it pertains to economic calculations, does not fit real law, on the other, for coherence, implies that the non-entrepreneur spouse must also be held accountable for the liabilities;

– the onset of a communion of company assets would create negative repercussions for third parties who have had relationships with the single spouse’s company, who would suffer a reduction of the patrimonial guarantee, which could discourage creditors from continuing to place trust in the subsequent management upon the dissolution of the legal communion;

– co-ownership would result in an impairment of the entrepreneur’s autonomy and management freedom, with the risk that the conflict between the spouses, which often characterizes some of the cases that determine the cessation of the legal property regime, could also reverberate in the choices that pertain to corporate assets that have fallen into the community of residues, creating a possible paralysis of entrepreneurial activity;

– equally illogical is the circumstance that, in the event of the death of the non-entrepreneurial spouse, the company assets would become joint property between the spouse operating the company and the heirs of the other spouse, who could be extraneous to the immediate family nucleus;

– the ordinary nature of the communion could frustrate the continuity of the company, given that, in the absence of a specific provision that contemplates a pre-emption in favor of the entrepreneur spouse, at the end of the division, if the business complex is not easily divisible, it could well request the attribution of the non-entrepreneur spouse, or, in the absence of requests to this effect by the sharing parties, it could lead to the transfer to third parties;

– thus there would be an evident contrast with the need, expressed at national and European level, to ensure the survival of businesses, as can also be deduced from the introduction of the regulation of the family agreement (Law no. 55/2006).

Finally, the United Sections specify that the credit claimed by the non-entrepreneurial spouse by way of community of residuals is not privileged, as it is not included among the mandatory hypotheses of the law (see art. 2741 of the civil code). Nor can the legitimate cause of pre-emption of art. 189, paragraph 2 of the Italian Code civ., as this rule refers to goods for which a real communion has arisen (and not a residual one, which instead involves the birth of a mandatory right). In any case, the protection needs of the non-entrepreneurial spousecould find adequate protection through the proposition of appropriate initiatives, including precautionary ones, such as the request for a seizure order.

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