The recent ruling of the Supreme Court of Justice of Mendoza in the “Zuccardi” case generated intense reactions in the business, media and academic field. There was no lack of apocalyptic diagnoses that warned about an alleged judicial advance against family businesses, nor who talked about legal insecurity. However, The Mendoza Court was limited to applying the current law against blunt events and a clear violation of inderogable norms.
There is much talk about legal certainty, but it is analyzed little, when it solidifies. On a few occasions, that slogan is invoked to convenience economic or media power, without repairing its true content. The truth is that legal certainty should not only serve the most powerful sectors, but anchored in the predictability, legality and respect of inderogable rights. When what is at stake is the application of public order norms – as with the legitimate portion in succession matters -, defending its validity is, in itself, to guarantee legal certainty.
The Civil and Commercial Code of the Nation establishes limits to the freedom to dispose of the assets due to death. In particular, it protects the forced heirs through the figure of the “legitimate portion”, a minimal and unavailable part of the heritage that must be mandatory for sons, daughters, spouse and, where appropriate, parents. Before the entry into force of the current Civil and Commercial Code, in 2015, this portion represented 33% of the goods. Today, with slight adjustments, that spirit remains intact.
This limit to the autonomy of the will does not obey a mere legislative whim, but a pillar of civil law inherited from the European continental system. It seeks to preserve the rights of certain members of the family nucleus and guarantee an equitable distribution of goods. If a disposition – by contract or donation – violates that minimum, the affected person can act judicially through the reduction action, currently regulated in articles 2447 to 2464 of the Code.
From the doctrinal point of view, the legitimate portion fulfills a social function: it prevents economic power or dependency relationships from the family to become an exclusion or punishment tool. The succession right not only protects goods, but also links, life trajectories and legitimate expectations.
In the “Zuccardi” case, the controversy arose following a donation made in life by Alberto Zuccardi in favor of his son, José, to whom he transferred 87% of the family business shares, in addition to a simulated sale of the remaining 13%. This decision left her daughters, María Cristina, – the greatest of the engineer’s offspring- and Ema – architect and the youngest- (, practically excluded from all patrimonial participation. As stated in the file, one of the arguments wielded was that she was “very rebellious”, an expression impregnated with moral judgment, negative connotation and gender stereotypes that refer more to the nineteenth century than to the 19th century.
Here it is not about benefiting a woman for her condition as such. The legal reasoning would be identical if the heir violated would have been a male son. The axis of the debate is in respect to the succession public order, in the defense of legitimate rights and in the judicial duty to repair structural imbalances when they are based on stereotypes that distort the real will or exclude arbitraryly.
And it is precisely in these cases where the application of a gender perspective is imposed, as required by Law 26,485 and as they compromise international treaties with constitutional hierarchy such as CEDAW and the Convention of Belém do Pará. The Court of Mendoza, far from innovating or forcing the regulatory framework, acted in line with the constitutional principles that make up the block of legality in force in Argentina.
In other countries with strong business family structures, such as Spain, Italy or France, the legitimate portion remains an essential tool of succession equity. In France, for example, children cannot be deprived of their legitimate part except for very serious causes; In Italy, the “legitthima” represents up to two thirds of heritage when there is more than one descendant. The international trend, far from eliminating these protections, reinforces them as the basis of distributive justice in complex family contexts.
Therefore, defending this ruling is not going against the company or against the family. It is to reaffirm that, in a rule of law, the rights of forced heirs cannot be subject to the arbitration of power, or the story of success, nor unequal practices presented as business decisions.
The Mendoza Court ruling, in addition, marks a projection towards the future. In times of recomposition of rights and review of business practices in a key to social sustainability, more and more courts are expected to act with legal sensitivity, technical rigor and perspective of equity. That is, in short, the best way to ensure that we are all truly under the same right.
Specialist lawyer in Commercial Law and Family Business Consulting
Source: Ambito
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