Trust business

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The fiduciary business, also a fiduciary legal transaction , is characterized by the fact that it gives the trustee more external rights than he is allowed to exercise internally according to the agreement with the trustor .

The fiduciary relationship can serve the interests of the trustee (so-called self-interested trust, e.g. transfer by way of security ) or the interests of the trustor (so-called third-party trust, e.g. administrative trust or debt collection).

In a real fiduciary relationship, the property or rights (the trust property) are fully assigned to the trustee. In economic terms, however, the trust property is part of the trustor's assets. In this case, the trustee acts in his own name, but at least partially in the interests of others.

In the case of a fake trust relationship, the trustor remains the owner of the property or the owner of the rights. However, the trustee is authorized either to dispose of the trust property in his own name or to act as the trustor's representative.

A trust business can be concluded openly (visible to everyone) or covertly. A covert fiduciary transaction is also recognized and effective; above all, there is no sham transaction because the legal effects are intended. Something else comes into consideration if those involved believe that the effects would also come about through a simulated transaction, for example through a sham transfer of ownership in order to save an asset from being accessed by creditors.

Individual evidence

1. ↑ Wendtland in: BeckOK BGB, Hau / Poseck, 54th Edition, as of May 1, 2020, BGB § 117 Rn. 13.