Strumenti di articolazione del patrimonio e funzione di garanzia: Uno studio applicato al Codice della crisi d’impresa e dell’insolvenza

The multiplication of forms of asset articulation calls for an attempt to systematise them, based on the verification of their compatibility with the general principles of the legal system, mandatory rules, and public order. This approach is resolved from a functional perspective, as the unifying moment of the instruments examined, with particular consideration of the possible guarantee function that the instruments may assume in the specific context of corporate crisis and insolvency. A reconstruction is made of the classical theory of assets, its evolutions, and recent interpretative outcomes. It also examines the disruptive choice made by the Quebec legislature to introduce a specific form of patrimony (the fiducie québecoise), the reconstructive criticalities put forward by the doctrine and the evident limits to the transposition of this institution by Italian law. At the outcome of this investigation, the principle of the universality of the subject's patrimonial liability, as codified by the Italian legislator in Article 2740 of the Civil Code, is examined, together with the ratio of comma 2 of the article in question, considered a rule 'completing' the general rule. The subject of investigation are three different ways of articulating the assets (the atto di destinazione, the patrimonio destinato ad uno specifico affare, and the Common Law Trust), the possible recourse to each in the function of a guarantee as well as the insertion of the same within a negotiation programme. The qualification of the gratuitous or onerous nature of the dispositive act, functional to the constitution of the asset structure in question, as well as the consequences of such a choice in terms of remedies, are examined. The results are declined from an operational perspective: the identification of the new structure of corporate crisis and insolvency law, as outlined by the recent Code on the subject and supranational legislation, raises questions on the new balancing of interests proposed by the legislator, with particular reference to the primary objective of business continuity and its contrast with the protection of the positions of creditors. Having traced the guidelines of the subject, the recourse to the phenomena of asset articulation is examined with reference to the individual crisis regulation tools, both in a continuity function and in a liquidation function, as well as within the negotiated settlement. In conclusion, the author states that, within the scope of the new Business Crisis and Insolvency Code, the recourse to assets circulation instruments could increase, as well as a different balancing point for the protection of the interests of creditors and third parties in the event of the continuation of business activity.