Ruolo e limiti del contratto negli assetti familiari in funzione successoria

The Article 457 c.c. expressly excludes the contract by the sources of the succession. Moreover, the article 458 c.c., apart from the initial brief aside dedicated to the institute of the family pact, agrees nullity of the agreements with whom someone decides its own succession as well as those with which the future successor could decide about his rights or renounce to them about a succession not yet open. However, for a long time, the Italian doctrine wonders about the role of the contract within the succession law. It feels, in fact, the need to expand the private autonomy within the inheritance that is excessively sacrificed by the prohibition of succession agreements and by the norms for the protection of legitimate heirs. The reasons which led the legal science to these conclusions are based on different events, both social and economic, that push the interpreter to a modernization of dogmatic categories with which he can represent the succession mortis causa. In addiction, it is necessary to underline the crisis of the agreements mortis causa due to this economical and social events: as a matter of fact, the will, as the only way to give the assets post mortem, revealed itself incomplete and extremely severe compared to the new social needs. In fact, increasingly the way to give the assets happens out of the inheritance and despite to the institutions designed by the law. For these reasons, in order to adapt the system of succession to modern economic and social needs, the doctrine has identified, within the system, institutions of a contractual nature in order to better achieve the interests of private, obviating the limits assigned to the shop last will. And recently, in this context, our legislator has introduced the institution of the family pact (art. 768 bis et seq. c.c.), that is the agreement through “the entrepreneur transfers, in whole or in part , the company, and the holder of equity investments transfers, in whole or in part, its shares, to one or more descendants". While, however, part of the doctrine encourages the provision of tools that enable a person to have in advance of his succession, on the other hand there are those who promote the centrality of the will within our legal system and calls for the revitalization in respect of its vast potential is not always adequately exploited. This research aims to verify whether the contract can find importance within the phenomenon of succession for the inter vivos transfer of family assets and if the same has the characteristics to be considered a working alternative to the will. In the present work will be analyzed, in addition, some of the institutions that the doctrine has considered alternatives to the will and particularly the institution of the family pact. The survey will also be directed to the limits that the private autonomy and the legislator met in the use of the contractual instrument, limits that are mostly originated by the rules and principles of the law of succession.

Una testimonianza silenziosa.Storia della Chiesa cattolica in Tunisia dal Trattato del Bardo alla ‘rivoluzione dei gelsomini’

The work examines the change involving the Church in Tunisia from the period of the Protectorate to the present through the fundamental moments of independence (1956) and the signing of the ‘Modus vivendi’ (1964). In the first structure of the “modern” Church, a fundamental role was played by the complex figure of the French Cardinal Charles-Allemand Lavigerie who, while giving strong impulse to setting up disinterested charitable social initiatives by the congregations (Pères Blancs, Soeurs Blanches and others), also represented the ideal of the ‘evangelizing’ (as well as colonial) Church which, despite its declared will to avoid proselytism, almost inevitably tended to slip into it. During the French Protectorate (1881-1956) the ecclesiastic institution concentrated strongly on itself, with little heed for the sensitivity of its host population, and developed its activities as if it were in a European country. From the social standpoint, the Church was mostly involved in teaching, which followed the French model, and health facilities. In the Church only the Pères Blancs missionaries were sincerely committed to promoting awareness of the local context and dialogue with the Muslims. The Catholic clergy in the country linked its religious activity close to the policy of the Protectorate, in the hope of succeeding in returning to the ancient “greatness of the African Church”, as the Eucharistic Congress in Carthage in 1930 made quite clear. The Congress itself planted the first seed in the twentyfive- year struggle that led the Tunisian population to independence in 1956 and the founding of the Republic in 1957. The conquest of independence and the ‘Modus vivendi’ marked a profound change in the situation and led to an inversion of roles: the Catholic community was given the right to exist only on the condition that it should not interfere in Tunisian society. The political project of Bourguiba, who led the Republic from 1957 to 1987, aimed to create a strongly egalitarian society, with a separation between political and religious powers. In particular, in referring to the Church, he appeared as a secularist with no hostility towards the Catholics who were, however, considered as “cooperators”, welcome so long as they were willing to place their skills at the service of the construction of the state. So, in the catholic Community was a tension between the will of being on the side of the country and that of conserving a certain distance from it and not being an integral part of it. In this process of reflection, the role of the Second Vatican Council was fundamental: it spread the idea of a Church open to the world and the other religions, in particular to Islam: the teaching of the Council led the congregations present in the country to accept the new condition. This new Church that emerged from the Council saw some important events in the process of “living together”, of “cultural mixing” and the search for a common ground between different realities. The almost contemporary arrival of Arab bishops raised awareness among the Tunisians of the existence of Christian Arabs and, at the same time, the Catholic community began considering their faith in a different way. In the last twenty years the situation has continued to change. Side by side with the priests present for decades or even those born there, some new congregations have begun to operate, albeit in small numbers: they have certainly revitalized the community of the faithful, but they sometimes appear more devoted to service “within” the Church, than to services for the population, and are thus characterized by exterior manifestations of their religion. This sort of presence has made it possible for Bourguiba's successor, Ben Ali (president from 1987 to 2011), to practice forms of tolerance even more clearly, but always limited to formal relations; the Tunisians are still far from having a real understanding of the Catholic reality, with certain exceptions connected to relations on a personal and not structured plane, as was the case in the previous period. The arrival of a good number of young people from sub-Saharan Africa, most of all students, belonging to the JCAT, and personnel of the BAD has “Africanized” the Church in Tunisia and has brought about an increase in Christians' exterior manifestations; but this is a visibility that is not blatant but discreet, with the implicit risk of the Church continuing to be perceived as a sort of exterior body, alien to the country; nor can we say, lacking proper documentation, how it will be possible to build a bridge between different cultures through the “accompaniment” of Christian wives of Tunisians. Today, the Church is living in a country that has less and less need of it; its presence, in the schools and in health facilities, is extremely reduced. And also in other sectors of social commitment, such as care for the disabled, the number of clergymen involved is quite small. The ‘revolution’ in 2011 and the later developments up to the present have brought about another socio-political change, characterized by a climate of greater freedom, but with as yet undefinable contours. This change in the political climate will inevitable have consequences in Tunisia’s approach to religious and cultural minorities, but it is far too soon to discuss this on the historical and scientific planes.