Trust and Brazilian Law

Abstract

The article aims to analyze the dogmatic qualification and the legal effects of the trust institute under the Brazilian Law. For this purpose, the study exams the general traits of a trust and its main types, subsequently proceeding to its classification as a “negócio jurídico” (Rechtsgeschäft/negozio giuridico) with elements from rights in rem and from law of obligations. Then, the article demonstrates the partial reception of the trust institute in Brazilian Law in light of its functional similarity with the “negócio jurídico fiduciário” (fiduziarischen Rechtsgeschäfte/negozio fiduciario). Considering the similarity between these two figures, the text proceeds to investigate the legal effects (concerning the rights in rem and the law of obligations) of a breach of the “negócio jurídico fiduciário” (fiduziarischen Rechtsgeschäfte/ negozio fiduciario) by the fiduciary. Once outlined certain aspects that the trust institute has in common with certain Brazilian Law institutes, and analyzed its possible legal effects, some questions of International Private Law concerning the legal implications in Brazil of a trust constituted in the United States are briefly discussed. Even though the article points out the specific aspects in which the partial reception of the trust institute in the Brazilian Law is possible, it reaches the conclusion that it is difficult to achieve a full reception of the trust, especially in view of the present legal impossibility of creating a separate patrimony, except for the legally provided hypothesis.