The Mandate And The Trust

The imperatives of legislative uniformity within the European Union have led states with a tradition of continental civil law to adopt regulations inspired by English legal institutions. Among them, the Anglo-Saxon “trust†was taken over in the form of the so-called “fiducia†. This represents a modern technique of patrimony administration, which was widely developed in the Common-Law legal system, and afterwards it spread among the countries which used the European continental law (Italy, the Netherlands, Luxembourg, Spain, France, Russia etc.), in the Middle East (Lebanon), South Africa, Latin America (Colombia) or Japan. In the Romanian civil law, the institution finds its own regulation in art. 773-791 of the new Civil Code, these provisions being elaborated under the obvious influence of the corresponding regulations of the Civil Code of Quebec (art. 1260-1370), respectively the French Civil Code (art. 2011-2030). However, the regulation of the trust by the provisions of the new Civil Code does not stand for an absolute novelty of our legal system, as it had been previously mentioned in the Law no. 51/1995 regarding the organization and exercising of the legal profession, which, in art. 3, mentioned among the attributions of lawyers the accomplishment of “trust activities, developed under the conditions of the Civil Code†.The regulation of the trust aligns the Romanian Civil Law with a necessary modernization tendency, the utility of this institution being undeniable especially in the business environment, as well as in the family relations. In order to achieve the necessary dissociation between trust and mandate, one must try to understand the purpose of these legal institutions and the mechanism by which one is sought to achieve it. Thus, the trust, as it was enshrined by the Common Law system, has the following specificity: apparently, there are two holders of the ownership of the same good simultaneously, without being a co-ownership. The trustee holds the “legal title†(he appears as the owner in relation to third parties), whereas the beneficiary holds the “equity title†, that is the right of ownership in relation to the trustee. Therefore, the trustee has the status of an “owner for another party's benefit†.The problem generated by the specifics of the trust consists in doubling the ownership, which contradicts the principle of indivisibility of the real rights in the civil law. Therefore, the trust was inapplicable as such in the continental legal system, so an attempt was made to adjust this institution in order to be able to integrate it into the civil law system, the result being the trust. Continental law also has a specific character that makes it impossible for the trust to be implemented as such, namely the formalism of the real rights advertising system. In the Anglo-Saxon law, the trust does not need to be disclosed to third parties, in some cases this is even prohibited. In the continental system, especially in France, which was adopted by the Romanian legislator as well, the publicity of the fiduciary relationship is mandatory.