Extensive comment - The Family Business as legitimate

I. Introduction

In this commentary, the judgment number 311/2014 of June 17, 2014, of the Provincial Court of Barcelona.
The interpretation carried out by the judge on the Article 451-8.2.a of the Civil Code of Catalonia, by which the Imputation of donations and particular attributions in the inheritance is regulated.

It is disputed whether in the transfer of a family business already operating for a long time, the deceased could donate the family business as a legitimate inheritance to his son, in accordance with article 451-8.2.a) CCC.

II. Factual background

1. On November 19, 1987, the Sociedad Fustes Faber, SA was incorporated by the defendants Rafael and Fidela, who held 25% of the shares each, and by their son Hermenegildo, who held the remaining 50% of the capital. social of the family business.
2. Doña Fidela, on April 2, 1998, before a Castelldefels notary, granted a will, whose last wishes were to name her daughter Belinda as heir, and bequeathed to her son Don Hermenegildo, as legitimate rights, the shares that belonged to the testator in the company in the mercantile company Fustes Faber, SA
3. “Don Rafael's last testament was executed on the same date (April 2, 1998) and before the same notary, Mr. Sevilla. He also named his daughter Belinda as heir and bequeathed to his son Don Hermenegildo, as heir rights, the shares that belonged to the testator in Fustes Faber, SA "
4. Before the death of the deceivers, the family business FUSTES FABER, SA, was dissolved and liquidated on October 20, 2009.
5. On April 4, 2010, Mrs. Fidela passed away, and after a few months, being October 21, 2010, Fidela's widower, Mr. Rafael, passed away.
6. After both died, a will was opened in which his two children, Dona Belinda and Don Hermenegildo, were named. Upon having knowledge of the content of the inheritance, the conflicts that were the subject of this litigation arose:

"Whose validity the testaments of the deceased were granted, we do not find any rule similar to point a) of article 451-8.2 CCC, introduced in the drafting of the fourth book of the CCC - which states:» They are attributable to the illegitimate, carried that the causer arranged an other thing: a) Les donacions fetes pel causant in favor of the fills because he was able to acquire the first habitat or undertake a professional, industrial or commercial activity that they provided personal or economic independence »-. No reference was then made to donations to acquire the first home or to undertake a professional, industrial or commercial activity that will provide personal or economic independence, nor to the need to make express mention in the will against its imputation to the legitimate.

Quite the contrary, the rule established that only donations made expressly as attributable to the legitimate one with express indication in this regard at the time of the donation would be attributable. Thus, at the time of granting the will of the parents of the litigants today, the grantors could not even think about the need to dispose something against a possible consideration as advances of the legitimate of the possible patrimonial attributions made in life with any of the purposes of the current article 451-8.2.a) CCC ”.

III. Conflict

Doña Belinda holds the position that the distribution of the inheritance was done correctly, as provided in article 451-8.2.a) CCC by which, Don Hermenegildo was attributable to her as the legitimate estate of the family business.

On the contrary, Don Hermenegildo, claimed not to have received his corresponding part of the inheritance, which in his case, belonged to him.

plaintiff, claimed that the transfer of the family business, as stated in article 451-8.2.a) CCC, has as its main motivation Undertake a professional, industrial or commercial activity thatprovides personal independence or economic, and that he, upon receiving said legacy, is not specified in the stated assumption, since first, he was already emancipated, and second, the legacy constituted a veteran company, and therefore, it could not be considered FUSTES FABER SA a company that had just started its business career.

Mr. Hermenegildo files an appeal before the Ordinary Court claiming the legitimate inheritance of his mother, Mrs. Fidela, and his father, Mr. Rafael.

• Court of First Instance number 6 of Gavà

The court dismisses the claim made by Don Hermenegildo against Doña Belinda. “The judgment accepts the defense of the defendant, the heir Mrs. Belinda, and considers applicable article 451- 8.2.a) of the Civil Code of Catalonia (CCC), according to which, they are attributable to the legitimate, unless the deceased provides another thing, the donations made by the deceased in favor of the children so that they can […] undertake a professional, industrial or commercial activity that gives them personal or economic independence ”.

"The judgment of the court [...] has proven that the actor received as an imputation to the legitimate, while his parents were alive, the company Fustes Faber, SA. […] The business created by the father of the litigants was transferred to the plaintiff in order to give him an inheritance. family business, being at all times owned by the father.

Don Hermenegildo appealed against the judgment of the court of July 20, 2012.

• Provincial Court of Barcelona

The appealed party alleges:

1. "Right error. Invocation of the second transitory provision of Law 10/2008, which approves the fourth book of the Civil Code of Catalonia ". The appellant plaintiff maintains, on the one hand, that the patrimonial attributions that his father could have made him during his lifetime cannot be considered donations, since they had the counterpart of personal work and dedication to the family business. It also alleges that, in no case, such attributions can be subsumed in the applied assumption of article 451- 8.2.a) CCC.

V. Resolution of the problem

The Hearing accepts the appeal and revokes the judgment of first Instance.

“The norm requires that the donation be made by the parents so that the child can undertake an activity that provides independence.
I. To undertake means "to undertake and begin a work, a business, an endeavor, especially if they involve difficulty or danger" (Dictionary of the Royal Academy);

It cannot be considered that the purpose of the patrimonial attribution - if there was one - was that beginning of activity, when the party that alleges it insists that it was a family business that it had been in operation for years - when it was founded by the deceased father - and that it continued to belong to the father, who planned to leave it as an inheritance to the son. We are not, therefore, before a case in which the parents made donations to the son to help him establish professionally, but in the one that facilitated their entry into the family business. It is a different assumption from the legal one and, as we have anticipated, it is not for the court to assess whether the 2008 Law establishes the imputation to the legitimate one in the cases described in article 451-8 CCC and not in others, in which a comparable foundation could be appreciated.

Nor can it be ignored that the norm refers to the purpose of giving independence to the child. […] Other data that result from the actions and that lead to Conclude that Don Hermenegildo already had that independence -in general, and, in particular, with respect to his parents- in 1987, when the Fustes Faber company was established. The Registry identifies Hermenegildo as of legal age, of commerce, married in a legal regime of separation of assets and domiciled in Castelldefels […] ”.

Therefore, The plaintiff's entry into society did not mean the undertaking of an activity to acquire personal or economic independence, but rather the continuity of the family business by the person who already had that independence, before the near retirement of the person who until then directed the company . The application requirements of article 451-8.2.a) CCC are not met, a rule that, as has been said, cannot be interpreted extensively. "