Fiducia In The New Civil Code: An Example Of Vitalization By International Business Law Of The Relationship Between Romanian Law And Common Law

Trusts have existed in common law systems as early as the Middle Ages, and European civil law systems were aware of its existence and also of the existence of Roman private law fiducia. Yet, civil law systems resisted for a long time the temptation of transposing trust or at least of developing Roman law fiducia. Romanian law, for instance, preferred, on the one hand, developing a series of case law solutions acknowledging the common law trust and, on the other hand, admitting a series of trust-like mechanisms, while assuming the role of defender of private law principles considered fundamental, such as the personal character of the patrimony and the exclusive and perpetual character of the ownership right. Such status quo was maintained for a long time, with the consequence of generating a static relationship between trust and Romanian fiducia, with trustee mechanisms being, however, developed under Romanian law. Conversely, upon the regulation of Romanian fiducia, we tend to overlook its fundamental convergence with the common law trust. The evolution of Romanian law with respect to trust is however not the consequence of trust’s proven utility; it is its forced answer to the dynamics of international business.