A law relating to foundations : a comparative and analytical analysis

Abstract

The legal development of non-profit organisations has been influenced by the constitutional framework of each legal system in which their successive phases have been carried out. The modem history of non profit associations demonstrates that in various legal systems the associative phenomenon has involved an initial struggle to achieve even the right to exist. Having attained this goal it has sought and in many aspects it is still seeking to obtain even better conditions of existence to permit greater possibilities of functioning and development. This can be achieved through judicial and legislative recognition. Obviously, these two aspects are not always easily distinguishable, yet they intercross continuously with each other. Historically it is fit to consider English law whose institutions are also the basis of the law of the United States even if they are not quite applicable to our system. It has been rooted deeply in English law the concept of the corporation as an aggregation of persons operating as one and endowed with a distinct personality. Apart from the corporation, the only other form of aggregation found in Common Law is the partnership which is really an aggregation of persons acting jointly for profit-seeking ends, but which did not attain a personality distinct from that of its members. It is also important that one examines the Italian notion of Foundations. However in order to have an adequate prospective of the situation in Italy, one should start by giving a brief analysis of the whole doctrine of institutions so as to be able to have a strong basis from which one can come to the correct conclusions in relation to the specific subject of this thesis, that is, the institute of Foundations. The progressive increase both in interest and in number of this type of corporation and the role even in the cultural life of our country are valid reasons why there has arisen the need to regulate this particular type of juridical person. In fact in 1991 the Permanent Law Reform Commission was entrusted with the task of preparing a report and then a draft bill relating to the law of foundation.