Surrogazione reale a seguito dell’impossibilità sopravvenuta della restituzione dell’indebito

Abstract

The paper addresses the issue of the impossibility of restitution of a holding’s shares in liquidation. The analysis starts from the discipline of articles 2037 and 2038 of Italian civil code, as for the thing’s restitution in case of title voidness. After a brief overview of the real subrogation, an example of which is identified in art. 1259 of Italian civil code, relating to the destruction (also juridical) of the thing to be given back, the study focuses on the doctrines of commodum repraesentationis and tracing, to draw a quick comparison between the two restitutionary systems. The relevant rules of uniform law (CISG) and the common European law (PECL, CESL, DCFR) are also considered. The solution proposed at the end of the investigation consists in the return of the “substitute” of the extinguished holding, that is the “legal residues” of the holding itself, i.e. the shares of the subsidiaries.