The parties of fiduciary contract

Author:Cornelia Lefter - Günay Duagi
Position:Department of Law, Bucharest University of Economic Studies - Department of Law, Bucharest University of Economic Studies
Pages:77-88
SUMMARY

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... (see full summary)

 
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The parties of fiduciary contract
Professor Cornelia LEFTER
1
PhD. student Günay DUAGI
2
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 2011
3
have introduced the fiduciary contract among the Romanian civil law
institutions
4
.
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.

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