December 01, 2011

Trust and fiducie

England has been including the concept of trust in its legal system for such a long time that it has been recognized as a key feature of the Common Law. Trough a trust, a settlor transfers a property to a trustee for the benefit of a third party, the beneficiary. It can be created by a written trust instrument signed by the parties, orally, by the will of a de cujus or by court.

Introduced in France by the loi du 19 février 2007, the fiducie has tried to fill the absence off such a concept in French law, trying to adapt it into its civil legal system. Fiducie and Trust are quite different one from another, the French legislator having tried to answer a legal need without copying literally the use or the status of the English legal idea. In fact, it appears that the legislators did not intend to grant the same flexibility to this legal device as granted to trust. Thus, trust can be implied, that is to say created without express will, fiducie cannot. The conditions to create a trust1 are also less heavy thant those to create a fiducie2.

The incorporation of the fiducie into French law has been the subject of a very intense doctrinal debate, of which every French law student has heard of, because it was said to go against the principle of unicité du patrimoine. According to this principle, an unique patrimony is attached to a physical person, that may explain the reluctance of the parliament to accept such a flexible device as trust.

It is really interesting to look at the differences between the two notions because they highlight the differences between French and English broad legal principles.

1 Knight v Knight(1840) 3 Beav 148

2 Article 2018 of the civil code

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