The parties of fiduciary contract

• Author: Cornelia Lefter/Günay Duagi
• Pages: 77-88

The parties of fiduciary contract

Professor Cornelia LEFTER1

PhD. student Günay DUAGI2

Abstract

The parties of the fiduciary contract in general, and the fiduciary in particular

represent the “engine” that moves the gear of this innovative institution. This study is

dedicated to the analysis of the most important aspects regarding the parties of fiduciary

contract as they are briefly regulated by civil Code, both by reference to current national

regulation and practice and by reference to international law and practice. On one hand, it

is relevant that there are some restrictions imposed by the legislator on the fiduciary

capacity and, on the other hand, there is a partial lack of correlation between the current

legislation regulating the activity of the qualified subjects of the potential fiduciaries with

the provisions of civil Code. At the same time, very useful regulations have been issued for

some of the fiduciary categories (investment companies and lawyers) that facilitate their

access to this institution and the use of fiduciary agreements in practice. However, in

general, the lack of clarity and insufficient legislation, as well as unawareness by some

potential beneficiaries of this institution, keeps the utilization of fiduciary contracts at a low

level in practice.

Keywords: the parties of the fiduciary contract, settlor, fiduciary, beneficiary of

the fiduciary contract, fiduciary-lawyer, Romanian civil Code

JEL Classification: K12, K15, K22.

1. Introduction

Through an innovative and modern approach, the creators of civil Code

from 20113 have introduced the fiduciary contract among the Romanian civil law

institutions4.

This extremely useful initiative has led to the possibility of using fiduciary

contracts in the Romanian legal system, and thus aligns it with other more

advanced jurisdictions such as France, Italy, Luxembourg, Germany and Canada.

1 Cornelia Lefter – Department of Law, Bucharest University of Economic Studies,

contact@lefter.org

2 Günay Duagi – Doctoral School of Law, Bucharest University of Economic Studies,

gunayduagi@yahoo.com

3 Civil Code dated 17 July 2009 (Law no. 287/2009 on the civil Code) – Published in the Official

Gazette of Romania no. 511 of 24 July 2009.

4 Regarding the regulation of the fiduciary contract in the Romanian Civil Code, see Bazil Oglindă,

Practical aspects regarding fiduciary operati ons, „Perspectives of Business Law” Journal, vol. 5,

issue 1, 2016, p. 221-223.