FIDUCIE AND CONFIDENCE
Betrayed trust : a universal risk
Almost everyone, in private life as in professional life, has at one time or another been, or is today, confronted with a situation in which trust has been broken, by a lie, a deception, a betrayal or quite simply by promises that were not kept. All of us have been, and are, every day, awash with news that we take seriously and to which we give credence, for want of any means of checking it, until we discover that it is false and at once cease to believe those who publish it. Worse still, in certain extreme cases, some who placed their trust in a smooth talker have found themselves defrauded, raped, murdered.
And what is true of private and professional life is equally true of public life: almost every people has, at one moment or another in its history, placed its trust in exceptional orators, sellers of dreams, who then disappointed them, ruined them or, worse still, subjected them to a dictatorship.
Each time, after falling victim to such a betrayal, everyone tells themselves that it will not happen again, that next time they will be more vigilant, more wary; that they will no longer give their trust so readily. Yet many fall back into it. To the point of becoming sceptical, bitter, suspicious, sometimes even paranoid.
After all, is it not said that History repeats itself?
And yet a serene private life, like a liveable social order, presupposes a minimum of trust in others: a family falls apart if its members do not trust one another. A business goes bankrupt if trust does not prevail among those who run it; a political regime collapses if contracts, the currency, safety in the streets, other people’s obedience to the law and the truth of the information circulated by the media cannot be trusted.
How, then, is one to know whom to trust?
Some rely on the clarity of a gaze, on the strength of arguments, on the apparent sincerity of feelings, on the empathy the other person gives off. Some rely on their intuition and decide very quickly whom to trust. Others need time and evidence; they sometimes go so far as to set traps to check whether the other person is consistent; others still, less rare than one might think, believe because they want to believe, even if, in their heart of hearts, they have doubts, or even certainties: one can love a liar, man or woman, and refuse to admit to oneself that one knows he, or she, is lying.
Are there more reliable means? Not really: there is no magic formula and no infallible software for knowing whom to trust. One can nevertheless gather a body of indicators:
In private life, a person worthy of trust must be consistent in what he says, and his words must be consistent with his actions, in the present and in his past; he must be able to provide evidence that he has been trustworthy in the past, and that he is so today with others. That is not enough; for someone may be, or may have been, at a given moment, worthy of trust, and then change and become a liar, a cheat, a thief.
Today in particular, how is one to trust those close to us when the praise of freedom merges with that of the reversibility of choices and of the instability of contracts, whether personal or professional? And how is one to trust a political class, of every persuasion, which through those choices as much as through its abdications has dragged the world into the chaos in which it finds itself?
From contract to fiducie : how the law secures trust
In law, this problem inherent in the fragility and the volatility of trust across time and ages has been resolved by the contract, which sets out the rights and the obligations of the parties in order to define the duties of each and to sanction any breach before the courts.
The fiducie (the French-law fiducie) comes from the Latin fiducia and means, precisely, trust. The English equivalent of the fiducie is the Trust, the meaning of which says nothing different. The fiducie is therefore the instrument of trust par excellence, and that trust is quite naturally expressed through a contract.
On the ground of trust, it is beyond dispute that the fiducie has proved itself, having passed through every legal system for 2.000 years from its roots in Roman law. Whether in Europe, in the United Kingdom, in the United States, in Africa, in India or indeed in China, the fiducie – and its Anglo-Saxon equivalent the Trust – is used everywhere throughout the world.
Given this particularly demanding requirement of trust, the legislature took care to restrict the right to act as Fiduciaire to three categories of commercial entities only (insurance companies, banks and management companies) and to members of the avocat profession alone.
These four professions, renowned for their high degree of rigour, know better than anyone the importance of trust. It is the invisible gold which nevertheless governs all human relations since the dawn of time.
This shows the level of trust that the legislature places, precisely, in the profession of avocat and the fact that this profession is, according to the parliamentary records, « the best suited to mastering all the rules permitting the serious exercise of this activity, in particular by reason of its experience of litigation ».
Entrusting your wealth to an avocat acting as Fiduciaire
Entrusting the management of all or part of one’s wealth to an avocat acting as Fiduciaire therefore means engaging the most specialised services of a specialist in relationships of confidence, who will undertake to manage it in accordance with the instructions imposed upon him in the contract of fiducie (the French-law fiducie), whether as a prudent administrator where the aim is to preserve it, or more dynamically where the Fiduciary Patrimony is to be enriched and increased rapidly in the interest of the designated Beneficiary(ies).
This choice must therefore not be made lightly, and preference should be given to the most experienced Fiduciaire, with, self-evidently, the broadest possible financial standing and management team.
Frequently asked questions on the fiducie and confidence
Why is confidence central to the fiducie?
The fiducie (the French-law fiducie) rests on the transfer of assets to a Fiduciaire responsible for managing them in the interest of the Beneficiary. The relationship of confidence is therefore essential: the law frames it through strict obligations and the liability of the Fiduciaire.
How does the law secure this relationship of confidence?
The Fiduciaire is subject to a duty to account, to a strict separation of patrimonies and to personal liability. The fiducie contract defines its mission precisely, which protects the Settlor against any abuse.
Why entrust your wealth to a fiduciary avocat?
The fiduciary avocat combines legal expertise, professional-conduct obligations (professional secrecy, independence) and enhanced liability. This affords a guarantee of rigour and neutrality superior to that of a mere agent.
What happens if the Fiduciaire betrays its mission?
The Fiduciaire incurs liability and may be replaced or sanctioned. The assets held in fiducie, ring-fenced within a dedicated patrimony, remain protected, which considerably limits the risk for the Settlor and the Beneficiaries.
Is the fiducie a reliable instrument?
Yes. Governed by law since 2007 and declared to the authorities, the fiducie offers a legal framework that is secure, transparent for the authorities and protective for the parties, provided it is drafted by a competent professional.
The House of Harlington since
2006