Court Declares And Acknowledges The Protection Of Trust Estate

• Published date: 14 May 2025
• Law Firm: Icaza Gonzalez-Ruiz & Aleman
• Author: Carlos E. Villalobos Jaén

Full Court declares and acknowledges the protection of trust estate and the limitations of fiduciary liability in the exercise of its management.

We have made a direct reference to the specific points discussed in the judgment of the Plenary of the Supreme Court of Justice, labeling the subject matter in each transcription which follows.

Lack of legitimacy of the Fiduciary, since it is not a party to the contractual relationship

Full Court expressly states:

"Analyzed the decisions challenged with this constitutional guarantee for protection of civil rights, we can appreciate that important facts can be derived therefrom. First, that Mrs. ANGELA FREITAS DE PEREIRA is a consumer and that she paid COMATECA PANAMA, S.A. the amount of B/.80,260.00 for the purchase of house No. 72 and that this legal person breached the contract, since it did not deliver the sold property within the agreed period. What remains unclear from the resolutions of the specialized jurisdiction is whether the petitioner, GLOBAL FINANCIAL FUNDS CORP. (formerly MUNDIAL SERVICIOS FIDUCIARIOS, S.A.), signed the consumer contract, as the accused official believes that this juridical person was not part of that contract; however, for their superior, this company was part of the contract. Given this situation, and since we are in the decision-making stage regarding the merits of the dispute, the Full Court proceeds to clarify the existing contradiction in the decision challenged by this constitutional guarantee for protection of civil rights."

The FULL COURT OF THE SUPREME COURT concludes by stating that, indeed, the Fiduciary never participated in that contractual relationship, thus discrediting the conclusions reached by the Commercial Courts in the challenged ruling, expressing this in the following terms:

"It should be emphasized by the Full Court that, in that contract, there was no mention of the existence of a guarantee trust, nor that the property on which the residential area would be built was owned by the Fiduciary; furthermore, in that contract, the petitioner did not intervene, participate, or was mentioned. Therefore, we conclude that GLOBAL FINANCIAL FUNDS CORP. (formerly MUNDIAL SERVICIOS FIDUCIARIOS, S.A.) was not part of, nor did it intervene in, that contractual relationship, which was limited solely and exclusively between COMATECA PANAM', S.A. and 'NGELA FREITAS DE PEREIRA, both in the execution of the contract and in the receipt of the alleged payments to settle the debt, which discredits the statement made by the Third Superior Court of Justice of the First Judicial District."

In this conclusion, the principle of contractual relativity, established in article 1.108 of the Civil Code, is highlighted.

Evidentiary assessment, and the necessary motivation by the COURT

The judgment emphasizes the work that the judges must carry out when examining the evidence and the obligatory contrast between each means of proof; in short, the Rules of Sound Criticism.

The Court refers to this as follows:

"However, it draws the attention of this Full Court that, according to the agreed contract, the price was to be paid in the following manner: a first payment of USD 6,200.00, within the first 5 business days of signing the promise to sell contract; a second payment of USD 7,800.00, 2 months after the signing of the promise to sell contract, and the balance of USD 66,260.00, through an irrevocable promise of payment letter issued by a local bank upon delivery of the real estate unit, registered in the Public Registry under the name of the promissory buyer.

Another point that should be noted is that, to prove this alleged payment, both the accused official and his superior used evidence (payment receipts, the letter of July 21^st, 2014, the statement provided by RAFAEL PISCITELLI DI BLASI, and the accounting expert evidence presented in the proceedings) that, in the view of this Full Court, are contradictory. Nevertheless, they did not explain why one took precedence over the other; instead, they asserted that all led to the same result, when that was not the case.

We state the above since the two expert reports filed in the proceedings are not favorable to Mrs. 'NGELA FREITAS DE PEREIRA, since, although both experts were shown the payment receipts provided by the plaintiff and there is a record of them in the accounting of the company COMATECA PANAM', S.A., the experts did not detect nor could they determine what the financial backing for those receipts was (money, check, transfer, bank deposit, etc.).

In this regard, the expert appointed by the defendant, Ciro M. Cano Q., indicates that: "The concept or explanation of the issued receipts was recorded as received in an account identified with the accounting code 1112, equivalent to SHAREHOLDER ACCOUNT - MARLON S'NCHEZ, and in the description of the journal entry saying: 'Family Investment Marlon S'nchez.' We observe that the journal entries are contained in COMATECA's accounting, but we do not have documentation such as bank statements, deposit slips...