Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, September 5, 2016

Article on the American Trust & the Latin American Fideicomiso

Latin america trustSergio Rodriguez-Azuero recently published an Article entitled, The Commercial Anglo American Trust and the Latin American Fideicomiso (2016). Provided below is an abstract of the Article:

This paper purports to provide evidence of the strong link between the Anglo-American trust and the Latin American Fideicomiso, through the essential common characteristics, show the marginal differences between them, analyze their particular structures, compare their evolutions and the commercial products offered to the market and explore their potential use.

The Latin American Fideicomiso is the functional equivalent of the Anglo American Trust. Despite the influence of the Roman-German law and the French Civil Code in “Civil Law Countries,” among which are most of the Latin American countries, the Fideicomiso as developed in Latin America was derived from the Anglo Saxon Trust and through the United States influences.

The name of the institution may lead some to initially think otherwise because: (i) the expression "Fideicomiso" has been taken from a roman institution and (ii) the first approach to its current Latin American structure looks similar to the “pactum fiduciae” in Rome. And this is true. But in the modern Latin American Fideicomiso, as it occurs in the trust, the independence of the patrimony controlled by the Fiduciary (trustee) is recognized. The Fiduciary has formal title to the goods but the Fiduciary holds an autonomous patrimony affected to obtaining the purpose specified by the constituent (settlor) .This notion was unconceivable in the roman system for someone that appeared and acted as an owner. It does not exist in the Civil French code of 1804 either.

In the United States, and England, the device of the trust traditionally facilitated the management of goods of wealthy families rather than being employed for business transactions.

The use of the trust for business purposes has recently risen in prominence in academic circles and practice in the United States, whereas in Latin-America, the trust has always been used to structure business contracts and has rarely played a role in matters of probate or inheritance.

It is also different from most contemporary efforts by European civil law countries to try to adopt the Trust, taken into account as a reference by many American authors when they speak of the Fideicomiso.

Even though many small particularities, in practice there are not substantial differences between legislations of the Latin-American countries, at least concerning the fundamentals of the institution.


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