La responsabilidad de las entidades fiduciarias por el incumplimiento en los negocios subyacentes al objeto contractual: crítica a la 'delegación' de obligaciones
How will fiduciaries be liable for breach occurred in the developing of a legal underlying relationship –a legal relationship subscribed by the fiduciary with third parties as a spokesman of the trust in order to fulfill a task entrusted– in a commercial trust? This work aims to address the questio...
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| Format: | Article |
| Language: | Spanish |
| Published: |
2014
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=7249126 |
| Source: | Revista Derecho Privado: (Universidad de los Andes), ISSN 1909-7794, Nº. 52, 2014, pags. 8-41 |
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| Summary: |
How will fiduciaries be liable for breach occurred in the developing of a legal underlying relationship –a legal relationship subscribed by the fiduciary with third parties as a spokesman of the trust in order to fulfill a task entrusted– in a
commercial trust? This work aims to address the question considering in the next five topics: 1) the development of
the trust agreement as a substitution business; 2) the delegation of obligations and liability for the breach of delegated
third parties; 3) the general duties of the fiduciaries; 4) jurisprudential treatment (Supreme Court and arbitral justice)
about the liability for the fiduciary in cases of delegated duties and 5) finally, some general conclusions related to the
discussions treated on this paper.
Methodologically, the article analyzes the normative and doctrinal studies related to the fiduciary liability, making also a
systematic review of the Supreme Court of Justice and the Arbitral precedents. Considering the absence in the academic
researches of the underlying relationship concept, it was introduced and defined by the author, finding the liability limits
in items related to diligence and care.
The article concludes arguing that the underlying relationship is a way to fulfill the contractual object, in such a way that
the fiduciary liability can only arise from its lack of diligence and care, but not because of the frustration of an objective
outcome. |
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