Riflessioni sull’intestazione fiduciaria di quote di società a responsabilità limitata

The decisions under review both deal with the topic of the registration of shareholdings in the form of shares in a limited liability company "under someone else’s name". A main problem is the legal characterization of the relationship, which is resolved differently in each decision. The Tribunal of Naples reconstructs the arrangement as a form of Roman-law fiducia, qualifying it as a real interposition of person and distinguishing it from simulation. However, the claim is dismissed due to insufficient proof of the pactum fiduciae, with testimonial evidence deemed inadmissible. In contrast, the Supreme Court reaffirms the established view that fiduciary companies are governed by the German-law model of fiducia, which is characterised by a division between substantive ownership of the share, retained by the fiduciant, and formal legitimacy, vested in the fiduciary. Based on this premise, the Court addresses the attachment of shares, excluding the applicability of garnishment proceedings and instead requiring the direct attachment mechanism under Article 2471 of the Civil Code, with notice to the debtor, the company whose shares are being seized, and the fiduciary company as the formal holder.