Patrimoni separati e patto di sostituzione

The research topic deals with destination bonds entailing a separation in the estate, which have nowadays obtained a relevant importance among the property organization tecniques. In the first instance, the study tackles the topic from a historical-systematic point of view: such approach aims to identify the elements for building a general theory of separate estates. The same aim have guided the analysis in the study of the numerous types of separate estate, which are provided for in different sectors of law; those are usually associated in a unique dogmatic category by the doctrine: we move from the so called “fondo patrimoniale” to the recent act of destination (provided by art. 2645-ter c.c.). It results that, even if those legal institutes present some relevant differences, they share an essential common core; therefore, it is possible to draft a main category having systematic relevance other than mere descriptive utility. The research has also shown the existence of a common issue to all the hypothesis of separate estate, which has not been directly tackled and solved by the legislator: the role played by “real subrogation” (“surrogazione reale”) in the field of separate estate. The reason for the study of such matter is consistent with the stakeholder’s need for preserving the destination bond any time an objective modification of the bound assets occurs after its establishment (modification that could arise, among others, from the loss or disposal of the goods). In the first instance, it is necessary to understand if the “real subrogation” can be considered a general legal institute, despite of the specificity of the provisions, therefore applicable to any alike situation or to the ones in which the same need for preservation arise. If the answer is found to be negative, it has to be ascertained if and to which extent the freedom of contract can produce an effect of subrogation, i.e. if the parties can cope with the legal lack of rules by entering in an agreement - ancillary to the act which creates the bound - which establish that effect. The present study has tackled such matters and has tried to depict the characteristics and the functioning of the “real subrogation”, also referring to the foreign experience. The effect of subrogation has been found not to match a general principle headed for the preservation of legal positions, including destination bonds. However, even if the “real subrogation” cannot be seen as a general effect of separate estate every time any specific provision lacks, the parties can reach a similar effect by agreement at the time the separation is established. Nevertheless, the freedom of contract meets several limits, among others the ones linked to the need for protection of the people directly or indirectly involved in the disposal, in particular the personal creditors of the one who has created the bound or of the owner of the bound assets. In conclusion, when any legal provision ruling subrogation lacks, the parties can reach the same effect by agreement, but they have to comply with the enlightened limits.