The Fiduciary Entrustment Contract

Law 112/2016 expressly states the aim of facilitating the use of private law instruments in favour of persons suffering from “severe disability”, a situation coinciding with that of severe handicap. In the provisions set by that Law, some Scholars, particularly tax lawyers, have found the theoretical basis to proclaim the arrival of the new institution of the fiduciary entrustment contract into our positive legal system. From the perspective of civil law, this observation is not universally shared. A hermeneutical dispute has arisen involving the attribution of real effects to the fiduciary entrustment contract. Some have remarked that the legislator’s aim would have been to ensure that certain assets be intended for the severely disabled person’s life project, protecting the temporary holder from vicissitudes. Others observe that the purpose of the provisions merely related to taxation cannot imply the adoption of a position separating assets under civil law. Attributing the characteristics advocated by legal theory by reference to the institution of the fiduciary entrustment instrument within law No. 112 appears dangerously superficial.