Il divieto del patto leonino dinanzi ai Venture Capital investments: problemi e prospettive

The doctoral thesis addresses the issue concerning the compatibility between the typical clauses of Venture Capital investments and the Italian legal system, with particular reference to the limits imposed by the prohibition of the patto leonino. From this perspective, following an overview of the Venture Capital phenomenon and, in particular, of the contractual arrangements characteristic of such forms of investment, as well as of the issues – at least apparently – raised by Art. 2265 of the Italian Civil Code, the analysis is specifically focused on this statutory prohibition. An initial framework is provided from both a historical perspective (with the aim of understanding the original rationale underlying the two prohibitions of which it is composed) and a comparative perspective (in order to identify the approach adopted by other legal systems with respect to the issue under examination). Having outlined these fundamental coordinates, the dissertation then focuses on the currently prevailing interpretation of Art. 2265, as well as on the critical issues arising from attempts to overcome, on the basis of such interpretative assumptions, the limits imposed by this provision on manifestations of private autonomy otherwise considered worthy of protection. In order to address these interpretative difficulties, the thesis advances a direct critique of the underlying assumptions of the dominant view, with reference both to the alleged connection between Art. 2265 and the causa societatis, and to its purported function of ensuring the proper exercise of corporate powers. Both aspects, when assessed in light of current law, do not appear adequate to capture the function of the provision. This gives rise to the need to offer a different reconstruction of the ratio and, consequently, of the scope of application of the prohibition of the patto leonino. Building on the systematic position of the provision, Art. 2265 is construed as a rule aimed at typologically demarcating between legal-person entities and entities lacking such legal status: more precisely, as a provision applicable only to partnerships, with respect to which it contributes to defining the quasi-proprietary relationship between partners and the partnership’s assets that characterizes entities without legal personality. In light of this interpretative outcome, it is ultimately possible to provide a new and distinct reading of the issue concerning the compatibility of the typical contractual arrangements of the investments under consideration with the Italian legal system.