Swiss “Fiducie” vis-a-vis French “Fiducie” (Terminological “Coincidences”)

Abstract

“Trust” has always been regarded as the sole possession of the common-law world. However, the popularity of this legal institution has greatly increased during the last decades. Nowadays, under the influence of the globalizing processes „trust-like devices” are appearing in many civil law jurisdictions or are under active consideration in the economic spheres of some countries. The given paper deals with the comparative analysis of the Swiss and French “fiducie”-s (contemporary trust-like mechanisms of Switzerland and France) via putting emphasis on the major similarities and differences of these institutions. The Swiss fiduciary transactions developed in 1893 in response to the practical necessity. Initially, these transactions aimed at the transference of ownership as security for a debt. However, in 1905 they were arranged for fiduciary management. Nowadays, the Swiss “fiducie” considers the transference of assets by a natural or a legal person to the fiduciary (another natural or legal person), who performs management tasks for the purpose of serving the creator’s or beneficiary’s interests. The Swiss law differentiates several forms of “fiducie” (“fiducie-gestion”, “fiducie-libéralité” and “fiducie-sûreté”), which have conceptual counterparts (“coincidences”) in the French legal system. Characterization of terminological and semantic “coincidences”, their separation and precise description – this is the major task of the given paper and one of the urgent questions of the contemporary legal studies.

DOI: 10.5901/ajis.2014.v3n3p269