Securing of claims by means of fiduciary agreements in the Serbian law

Abstract

Fiduciary agreements represent innominate legal affairs the basic function of which is to secure the trustor?s claims. Fiduciary security of claims is historically rooted in the Roman law institute "fiducia cum creditorecontracta". These contracts demonstrate numerous advantages in relation to most other forms of collateral security. The most prominent benefit is proved by the fact that, due to the transfer of the property title to the trustor in the moment of entering into agreement, the process of payment of the trustor?s claims is considerably accelerated and the level of legal security increased. However, this legal transaction is not regulated under the positive Serbian legislation, which leads to the fact that our courts often proclaim the fiduciary agreements null and void. This paper points to this rather significant issue and contains some proposals on how to successfully deal with it using the solutions similar to those found in other continental legal systems. In addition to the aforementioned arguments, the paper also presents other reasons proving that it would be advisable for our legislator to integrates fiduciary agreements into our positive legislation.