French trust law

Fri 14 December 2018, Philippe Ropenga

2018 is about to say goodbye; the spirit of Christmas casts a joyful light on anything that comes to attention, and happy memories come back to mind. When it comes to trust law, good moments are related to you, dear reader. Alacriter's blog starts from practice to end with theory. This approach allows me to write that French trust law exists. Let us recall the interesting landscapes and plants that we have seen on our journey.

In 2017, private international law related to trusts and estates dealt with forced heirship, and therefore, several posts dealt with the subject.¹ This is trust law seen from the outside, the civilian world. Trusts are closely related to successions because value, unlike life, may last forever provided that changes in circumstances are taken into account.² One wants to make sure that a fiduciary will look after this value as time goes by. This cautious attitude also prevails when someone transfers the legal title to property during one's lifetime.³ Furthermore, gifts can be difficult to handle when one has to take incapacity into account.⁴. Similar issues arise in French and English laws since intention is a crucial issue on both sides of the English Channel. The practitioner has to make sure that it is clearly and firmly expressed, and thus, has to rely on formalities in a domestic⁵ or international⁶ context. Our spirits are high when we face these challenges because we know that when there is a will, there is a way. One just has to make sure that it is properly drafted⁷.

Trusts are interesting because they allow value to grow strong while human nature is weak. We have seen that they were means in French law as well as in English law to prevent and handle disputes by structuring and managing the estate⁸. Many readers have enjoyed reading my French variations on English trusts.⁹

One may object that French trust law does not exist since they are no trusts in French law. Nevertheless, similar questions arise on both sides of the English Channel. There has been a complete change of perspective in a little more than ten years. France, after other civilian jurisdictions, has officially introduced a trust-like device in 2007 in French law.¹⁰ Trust lawyers who practice in the common-law world have more recently gained interest in foundations that have now become part of trust law. Some jurisdictions, such as the United Arab Emirates, have been promoting and crafting new attractive foundation regimes. Foundations were originally unknown in common-law jurisdictions and have been seen as an alternative trusts in civilian ones. As one can see, trusts primarily are not a question of structure but of culture. Hence, there is no easy answer to the question whether French trust law exists because one has to know what makes a trust a trust. Anyone who considers this question seriously knows that each practitioner may give a slightly different answer. Many practitioners will mention the three certainties. This starting point has more to do with culture than law because trusts without beneficiaries exist in many jurisdictions. It seems to me that practitioners who may be reluctant to admit that French trust law exists are not uncomfortable with concepts used on this blog. They may however be surprised by French legal manners that encourage the practitioner to use these concepts in a French way.

I keep going thanks to your support and your feedback. Our shared enthusiasm about trust law is essential: it helps me to uncover French trust law that already works. Thank you very much for your support. I wish you a warm Christmas. May the New Year bring you health and thrilling legal challenges to respond to.

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