The Legal Concept Of Trust In Honduras

Published by financial newspaper Moneda, October 2010.

In Honduras the legal concept of trust is governed by the Commercial Code. It defines the trust as a legal transaction by which a bank is appointed as a trustee who is authorized to operate the domain ownership over certain assets with the limitation to perform only those acts required for lawful purposes and pursuant to which they are determined.

The definition suggests several implications such as:

The role of trustee in Honduras is limited only to financial institutions; The transfer of domain ownership of certain goods to a bank trustee (the person which performs the transfer of ownership is called the settlor; the domain owner of the assets is called the trustee and the person which receives the benefit of the trust is named beneficiary). The trustee can only perform acts that are mandated by the trust agreement. The trust is a contract which transfers ownership or transfers the domain ownership of certain assets to a trustee which acts as a manager of the assets to meet a specific purpose (or more) duly stipulated between the parties in the trust.

The trust may be constituted by by contract and by will, and the consent must be express.

There are three fundamental subjects in the trust agreement: a) The settlor, who gives the property in trust; b) the trustee who manages the property matters in the trust (and in Honduras can only be a bank), c) the beneficiary, who will receive benefits and / or fruits of the trust.

Who can be settlors? Individuals or legal entities that have the capacity to make the allocation of the trust property involved and also the judicial or competent authorities in the case of goods whose care, conservation, management, liquidation, distribution belong to such authorities or persons designated by them. Capacity means that they are legally eligible to perform such an act: adults, use of mind and in full enjoyment of their civil rights.

The assets under the trust cannot be touched by third parties. Moreover, the beneficiary may be the same settlor or a designated person that cannot be assigned by the trustee.

Trustees and beneficiaries may be both natural and legal persons who have the capacity to receive the benefit that the trust involves. The real objects of the trust (trust property) can be assets and rights of every kind except those expressly reserved as private personal of the owner. Such assets and rights shall be exercised only in the trust provided...