From Roman Law Fiducia to the Trust in the Romanian Civil Code

Abstract

The fiducia, a concept that has many uses, is a legal instrument by means of which one person acquires form another person a legal right under an obligation which limits its enjoyment. After much beating around the bush and three previous failed attempts, the fiducia was adopted in France. Having as model the French Civil Code, the draft of the Romanian Civil Code included also provisions governing fiducia, subsequently retained in the adopted 2009 Civil Code. Therefore, this article attempts to highlight some of the common and national characteristics of the modern fiducia in the context of a partial restoration of the Roman law’s heritage determined by the trust’s expansion in the Latin law system. Although the Romanian and the French fiducia are a first step towards the introduction of a genuine trust law, it’s difficult to see under what circumstances fiducia – the Roman real contract’s offspring which presents yet some characteristics borrowed from the Anglo-Saxon trust – could provide an effective replacement for the trust. That’s why, perhaps, the Romanian and the French legislator would have been more inspired in ratifying The Hague Convention on the law applicable to trusts and on their recognition, considering that a country’s legal system, despite its legal tradition, must also be a competitive one.