In the middle of nowhere. The never-ending transition of Italian private companies (società a responsabilità limitata - SRL)
| Autor | Alessio Bartolacelli |
| Páginas | 305-336 |
In the middle of nowhere.
The never-ending transition of Italian private companies
(società a responsabilità limitata - SRL)
Alessio Bartolacelli
1. Introduction; 2. Streamlines in reforms of Business Law from 1942 to 2004.
The birth and growth of SRL; 3. The long-lasting season of the amendments to
counter-reformation (2012-ongoing?); 3.2.1. The Innovative Start-ups; 3.2.2.
1. Introduction
usually most frequent and important. Actually, we can assume that Business
Law has two basic purposes. On the one hand, it aims at regulating business
activities; this means that business regulations are continuously chasing real-
ity, trying to provide legal responses to the innovative situations developed in
economic practice, but, at the same time, being aware of the fact that reality is
and the tortoise. On the other hand, particularly under the most proactive
and wise legislatures, Business Law is responsible for promoting new entre-
preneurial attitudes and tools, serving as a vehicle of innovation for society
as a whole.
rearguard (response) or a forefront (impulse) approach to the actual business
system of rules laid down in a given order: in the same legal environment
– which can be either a national or a supranational one – the two attitudes
might coexist. In the same legal environment, the rearguard attitude can be
present with reference to some situations, while a forefront promotion ap-
proach is adopted for others .
In both cases, the need or aim to regulate the innovation gives rise to tran-
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ALESSIO BARTOLACELLI
306
sitional phenomena. They nevertheless differ: very often, the rearguard at-
titude is not fully adequate to provide an answer to the question “where are
we going to?”, while the forefront one naturally should be forged having a
present, as we are going to see, and this creates somewhat of a short-circuit in
legislative interventions, with schizophrenic sudden changes with little or no
clear ultimate purpose.
i.e. the case of the Italian private company, the società a responsabilità lim-
itata
legislative interventions during the last decade. This superabundance of in-
-
ny form, whose nature and position in the system of Italian Company Law is
currently a matter of harsh debate among legal scholars.
2. Streamlines in reforms of Business Law from 1942 to 2004. The birth
and growth of SRL
From 1865 until 1942, the realm of Italian Business Law had as its primary
Codice di commercio issued in 1882. The remaining part of Private Law had
the Italian Civil Code issued in 18651 as its main source.
The separation between the Civil and the Commercial Code is naturally
the relationship between Civil and Business Law. Business Law was intended
to be a realm separated from general Private Law because of the economic
nature of business.2 It is not by chance that the application of the Codice di
commercio was intended to occur with reference to all the acts of business
(atti di commercio
businessman (commerciante). In this system, where a single type of contract
could have rules in both the Civil and Commercial Code, the provisions laid
present in the Civil Code. The system was thus designed in order to expand
the application of Commercial rules over the “common” civil ones, and this
1 Galgano (2010) 221 ff.; Spada (2009) 15 ff.
2 Spada (2009) 18-19.
INNOVATION AND TRANSITION IN LAW
307
expansion followed the commercial nature of the acts carried out by a sub-
3
-
Commercial Law, which was “losing” its proper Code, the correct reading of
substantial transfusion of many of the solutions present in the late Commer-
cial Code into the new Civil Code: many commentators and scholars have
4 A corollary to this move-
of the application of commercial law: the passage from the act of commerce,
to the person in charge of commerce, i.e. the entrepreneur (imprenditore). It
has been clearly pointed out that, from a practical point of view, there were
not huge differences between the old commerciante (businessman) and the
new imprenditore.5 In any case, the fact that from 1942 on, the entire Com-
mercial Law system has as its pivot not an act, but a person (either natural or
legal, as in companies) clearly contributed to an increased certainty regarding
the area of application of Commercial Law in the entire Italian legal system.
A legal system that became much more thoroughly “commercialised” because
of the adoption of commercial principles in the new Private Law regulation
set down in the Civil Code issued in 1942.6
-
ation of a “new” company form, the società a responsabilità limitata (herein-
s.r.l.
3 Spada (2009) 25 ff. For a more comprehensive panorama, see also: Buonocore
(2006) 15 ss, spec. 22 ff.; Libertini (2006), Delle Monache (2012), and the debate between
Libertini (2015), Montalenti (2015), and Maugeri (2015). A new and recent debate on the
so-called “ricommercializzazione” of Italian Business Law is also interesting: Angelici
by Kindler (2019).
4 Buonocore (2006) 22 ff.
5 Spada (2009) 27-28.
6 For a comprehensive analysis of this transition from the Commercial Codes of the
19th century, to the new Civil Code, see Teti (2018).
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