Brief approach to the “FIDUCIA CUM AMICO”

29 November, 2017
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Civil
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Antoni Millet


This figure, currently in effect, goes back to Classic Roman Law, which defines it as a contract in which one person – a trustor – transmits ownership of something to another – trustee – for purposes of a different nature. The thing is entrusted to a loyal person who only acquires the property according to the purpose pursued (deposit, donation, donation with obligation to return). In any case, the acquirer is an “apparent” owner, so he must reinstate the item at any time the trustee requires it. In Roman Law this figure was protected by an “actio” called “actio fiduciae” to claim the return “fiduciant” and an “actio fiduciae contraria” provided by the trustee in case he had incurred expenses related to the possession of the subject matter of the contract. Later, the Praetor defined specific actions to protect the deposit or the donation, for example, and the “fiducia cum amico” continued to exist, but with a purpose such as that which is still in force.

Currently, this figure is a business modality, based on trust, in which two people enter into an “apparent” contract that serves a different purpose or business, really wanted.

There are cases, as in Roman Law, in which the “trustor” transmits the formal ownership – ownership – of a property to the “trustee” but, in fact, is done in the exclusive interest of the former who is the one who maintains the actual ownership and you can retrieve the form at any time you require the second one. Another occurrence would be when the “trustee” could occur when a good, business or society is named in the name of one person and, in fact, two are the owners.

The Supreme Court regards “fiducia cum amico” as a business modality in which “the fiduciary” commits itself to having the thing for the benefit of the “fiduciary” or a third party in such a way that it does not have actual ownership, because he is not the real owner, but he has only a formal (that is, apparent) ownership, precisely characterizing the figure we try to predominate in the interest of the “trustee”, accentuating the note of confidence. He ends by saying: “fiducia cum amico” involves the creation of an appearance, a case of intestate movement, in which the “fiduciary” is still the owner.

In the Spanish Civil Code we can find a basis for this figure in article 1.277 when it states: “Although the cause is not stated in the contract, it is presumed to exist and is lawful while the debtor does not prove otherwise. “

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