A vueltas con la supuesta obsolescencia de la Fiducia romana

Abstract

The abundant romanistica literature on the fiducia evidences the controversies - some, irresoluble – around this figure which the compilers sustematically replaced in the texts of the justinian work. The recovery of the Roman fiducia corresponds to the German Pandectistica, whose modalities and effects serve as a conductive thread in the elaboration of the general theory of the fiduciary business. From the contributions of the pandectists, the german, italian and spanish doctrine seek the appropriate way to fit the figure in their respective legal systems. Both the doctrinal studies of romanists and civilists and the jurisprudential references to fiduciary and fiduciary business confirm its validity. In Roman law and Spanish law, the question that has the most practical relevance is whether, ab initio, the fiduciary acquires full ownership or not. The review of the few Roman sources that unequivocally deal with the trust confirm how the real effects of the fiduciary business should not be separated from the purpose sought by the parties and, therefore, the most appropriate way to qualify and understand the ownership of the trust. In this paper we will review how the latest pronouncements of spanish jurisprudence are closer to the gay interpretation of fiduciary than to the so-called "double effect theory", preferred by doctrine and jurisprudence since the early 70s despite the iniquity to which its strict interpretation leads.