CONFUSIÓN DE PATRIMONIOS Y PUBLICIDAD REGISTRAL: EL CASO DEL TRUST. (AL FINAL DE ESTE TRABAJO SE PUBLICA UNA NOTA DE F. JAVIER GÓMEZ GÁLLIGO, CONSEJERO- SECRETARIO DE LA RCDI, SOBRE LA MATERIA.)

Abstract

In this paper the author analyses the Anglo-Saxon legal concept of the trust, the form trusts may take in Spanish law and the influence registry disclosure can have on the achievement of the purposes of an immovable property trust. While the constitution of and acquisition of standing for a trust carry de facto publicity and do not need to seek registry disclosure on top of that, disclosure through the property registration system is basic for guaranteeing the separation of the trust's assets from the constituent party or founder and his, her or its debts; for protecting the assets from rescissory action as a consequence of contribution fraud; for separating the trust's assets from the fund manager's property and making it clear that the person administrating the property is merely a manager; and lastly for the purpose of maintaining the benefit of the trust's limited liability. The property registration system reserves the same leading role when the assets involved have to be given an organic representative, although in those cases the risk stems from confusing the trust's property with the manager's personal property. Use of the registration system has proved to be especially effective to generate confidence and therefore to fight creditor fraud when there is any danger of «dummy» trusts being set up to disguise speculative or simply risky transactions and shift the foreseeable losses onto third parties. In short, registry disclosure proves itself no less important when the point is to set up guarantees so the trust administration can be kept under proper supervision: Provided that the management is static, the registration of the property involved and the creation of a mortgage securing the return of the property's value have revealed themselves to be effective instruments for setting the management relationship on a solid foundation.