The protection of fiduciary property-trust fund. A comparative study: French and English law

The constitution of a fiducie-trust has the effect of creating a patrimoine fiduciaire-trust fund. Because the beneficiaries obtain their benefits from the patrimoine fiduciaire-trust fund it has to be in a condition that permits them to obtain those benefits. Hence the importance of having adequate means to protect the patrimoine fiduciaire-trust fund.   The protection of the patrimoine fiduciaire-trust fund starts by preventing it from being harmed. Since any action or any inaction of the fiduciaire-trustee can have negative effects on the patrimoine fiduciaire-trust fund, it is necessary to begin by protecting it from the fiduciaire-trustee. There are two situations which have been proven to be dangerous to the patrimoine fiduciaire-trust fund: a) when the fiduciaire-trustee acts in an interest other than that of those of the beneficiaries and b) when the fiduciaire-trustee is negligent in the performance of his obligations. To cope with these two problems and to prevent the patrimoine fiduciaire-trust fund from being damaged by the fiduciaire-trustee, two obligations are imposed upon him: a) the devoir de loyauté-duty of loyalty and b) the devoir de diligence-duty of care. If the patrimoine fiduciaire-trust fund is at risk of the actions of the fiduciaire-trustee, it is also at risk of the actions of third parties. The protection of the patrimoine fiduciaire-trust fund from third parties begin by the ownership of the fiduciaire-trustee and continues by separating the patrimoine fiduciaire-trust fund from the personal property of the fiduciaire-trustee.   Because the preventive measures that protect the patrimoine fiduciaire-trust fund are not infallible, it is necessary that the constituant and the beneficiaries have access to legal remedies for when the patrimoine fiduciaire-trust fund has been damaged. Among the remedial protection are those of personal nature, including remedies for specific enforcement of the fiducie-trust and those that tend to repair the patrimoine fiduciaire-trust fund. To repair the damage caused to the patrimoine fiduciaire-trust fund there are also real remedies. If English law provides true real remedies, in contrast to French law offers "fake" real remedies because even if the nature of those remedies are not strictly real, they have similar effects to those offered by English law.