La categoria generale degli strumenti finanziari nella disciplina codicistica della società per azioni

The Italian Civil Code has allowed joint-stock companies to issue financial instruments; but there is still no certainty as to which elements characterize the participatory financial instruments and in what these differ from the non-participatory financial instruments. The author supports the thesis that p.f.i. are provided by art. 2346, sixth paragraph, c.c. and n.p.f.s. by art. 2411 c.c.: the former article allows to collect venture capital, while the latter debt capital. The category of p.f.i. includes the shares, while the category of n.p.f.i. fully identifies with the bonds. As far as the concept of “participation” is concerned, it does not identify with sharing the risk but with a peculiar way of sharing: the participatory instruments, unlike the non-participatory ones, do not give a credit but only a conditional credit. Because of the above, it is possible to understand how to record the money given by those who subscribe to non-equity p.f.i. It cannot be recorded as capital, since this only occurs with shares, and cannot be included in the net assets, as this would mean a greater risk than that shareholders are subject to. The contribution must therefore be recorded as a company’s debt