Embora o mercado de crédito imobiliário no Brasil tenha se expandido nos últimos anos, sua participação no Produto Interno Bruto (PIB) está muito abaixo do percentual encontrado em outros países em desenvolvimento. Com isso, o país continua apresentando déficits habitacionais significativos, problema este que tem maior impacto nas famílias de menor renda. Este estudo pretende analisar o impacto da Lei no 10.931, de agosto de 2004, que incluiu a figura jurídica de alienação fiduciária do bem imóvel no ordenamento jurídico nos contratos de financiamento habitacional do Brasil, avaliando a evolução destes para diferentes grupos de mutuários. É consenso na literatura que o mercado de crédito apresenta certas particularidades, como os problemas de informação e comprometimento limitado, especificidades estas que podem gerar racionamento de crédito. Avanços institucionais que alterem os parâmetros dos contratos, e que aumentem a segurança jurídica dos credores podem ajudar no desenvolvimento do mercado de crédito, amenizando estes problemas, e tornando o crédito mais acessível para todos os tipos de mutuários, / Although the real estate market in Brazil has been expanding in recent years, its share in Gross Domestic Product (GPD) is significantly below the percentage found in other developing countries. Because of this, the country continues to present significant housing deficits. This study aims to analyze the impact of the Law no 10.931, from august 2004, which included the legal concept of fiduciary property in the legal system in contracts for the real estate market, comparing the evolution of these contracts for different groups of borrowers. There is a consensus that the credit market has certain peculiarities, such as information problems and limited commitment, which can generate credit rationing. Institutional improvements that alter the parameters of the contracts, and increase legal certainty for creditors may help in the development of the credit market, mitigating these problems, and making credit more accessible for all kinds of borrowers,

Magister Legum - LLM / If a company is harmed by the behaviour of a director as a result of financial misstatements, shareholders may suffer the economic consequences in the form of a diminution in the value of their shares. Failure on directorship level in these circumstances has on more than one occasion resulted in aggrieved shareholders seeking to recover damages suffered and losses incurred in terms of section 218(2) of the Companies Act 2008. This was the situation in the recent cases, Hlumisa Investment Holdings (RF) Limited v Kirkinis and in Itzikowitz v Absa Bank Limited. While I am unaware of any reported case arising from the much-publicised Steinhoff scandal, there appear to be moves in the direction of court action to recover pure economic loss. Steinhoff shareholders are seeking to hold the retail group‘s directors to account. Scandals like Steinhoff and African bank are disturbing because it points to a lack of clarity and certainty in South African company laws in respect of director‘s personal liability in these circumstances. It is for this reason that this study investigates whether shareholders can institute personal liability claims against directors for causing shareholders a diminution of the value of the shares in the company as a result of poor decision making on directorship level, since such a loss is merely reflective of the company‘s loss. Although, after Itzikowitz v Absa Bank Limited, the position seems to be settled in our law, we still have incidences where shareholders are seeking to hold directors personally liable for the diminution in share price under section 218(2) of the Companies Act 2008. It is for this reason that the study explores the scope of section 218(2) and investigates many related questions surrounding section 218(2), in light of directors‘ personal liability and shareholder protection.

The corporate form that developed in the early 20th century created enormous pressure for corporate governance mechanisms to curb the power of corporate managers. Berle and Means, legal pluralists, warned about concentrating economic power in the hands of a small but powerful class of professional managers. They claimed this "new form of absolutism" required governmental oversight and viewed boards of directors as part of management, rather than monitors for shareholders. The Securities and Exchange Commission (SEC) proposed that corporations establish a special board committee, made up of "nonofficer members" in response to the McKesson & Robbins scandal of the late 1930s. My dissertation examines the evolution of the U.S. corporate audit committee through three specific time periods: (1) 1920-1954; (2) 1955-1986; and (3) 1987 to the passage of the Sarbanes-Oxley Act of 2002. My purpose is to determine if evolution of the audit committee throughout these periods has been a reform continually couched in symbolism or whether the audit committee concept has evolved into real reform, allowing proper corporate governance and mitigation of unchecked corporate power. My analysis is a traditional empirical analysis, relying on both primary and secondary sources to develop a coherent ordering of facts. I use narrative in a narrow sense as my historical methodology, examining patterns that emerge and interpreting facts to develop a clear understanding of demands for and uses of audit committees. I use a holistic approach in studying the data, using narrative to show how these patterns ensue from the historical data.

The duty to act with the diligence of a professional manager and consequences of the violation of this duty This thesis deals with the duty to act with the diligence of a professional manager and the consequences of doing so. The author of the thesis tries to define in detail the duty to act with the diligence of a professional manager as a standard form of conduct and its individual definition components and also the consequences that occur in case of breach of this duty. The thesis defines the theoretical basis and tries to critically evaluate problematic issues related to this standard of conduct and to bring their own opinion on the matter.The thesis is divided into six parts. The first part deals with the master-agent issues and the related costs of representation. Shortly, attention is paid to the fiduciary duty and the reasons for its anchoring in general. The second chapter deals with the development of the duty to act with the diligence of a professional manager from the time of the General Austrian Civil Code of Law to legislation in the Civil Code in force and the Business Corporations Act. The third chapter defines individual elements of the care of a professional manager, namely the duty of loyalty, due care and necessary knowledge, with a partial overlap into foreign legal systems....

The failures of constitutionalism and good governance in Africa are well documented. Importantly, these failures have also highlighted the importance of constitutionalism and good governance in Africa. This study centrally explores the relevance and viability of social trust-based governance and constitutionalism in Malawi, specifically, and Africa, generally. Social trust-based governance and constitutionalism is an approach to governance and constitutionalism that is informed by the trust concept and is also fully mindful of local conditionalities in its operationalisation. By referring to the Constitution of Malawi and other pieces of legislation in Malawi, this study demonstrates that there is a legal basis for articulating and practising social trust-based governance and constitutionalism in Malawi. This legal basis stems primarily from sections 12 and 13 of the Constitution but is also supported by legislation like the Corrupt Practices Act, Public Finance Management Act, Public Procurement Act and the Public Audit Act. In spite of the fact that there is a basis for social trust-based governance and constitutionalism in Malawi it is evident that governance and constitutionalism in Malawi have not, so far, been practised in line with the stipulations of the social trust-based approach. The current approach to governance and constitutionalism in Malawi is heavily steeped in the liberal democratic tradition. In this connection, this study demonstrates the limitations of the liberal democratic approach to governance and constitutionalism in Malawi principal among which is the lack of autochthony. Since the apparatus of liberal democracy has subsequently become quite entrenched in Malawi and most African countries, it is argued that the way forward involves creating a synthesis out of liberal democracy and the norms, traditions and values indigenous to Africa. This study identifies the philosophy of ubuntu as being an important source of values and principles that can be utilised to confer some autochthony to governance and constitutionalism in Malawi, specifically and Africa, generally. The approach adopted in this study concedes that neither a rigid insistence on liberal democratic constitutionalism nor a strict adherence to ubuntu-based governance and constitutionalism can succeed in Malawi. The solution is to utilise values from both traditions in order to generate a viable approach to governance and constitutionalism. In this study, the viability and relevance of social trust-based governance and constitutionalism is demonstrated by reference to the relationship between the branches of government, public resource management and the accountability of public functionaries and citizenry empowerment in Malawi. This study argues that a social trust-based approach to governance and constitutionalism can improve the relations between the branches of government, reinvigorate public resource management and also enhance accountability of public functionaries and empower the populace in line with the Constitution’s vision. The Constitution, as the supreme law of the land, thus remains integral to governance and constitutionalism in Malawi. / Thesis (LLD)--University of Pretoria, 2010. / Centre for Human Rights / unrestricted

Trust law has hindered beneficiaries from exerting their voice in the administration of their funds. Yet, individuals do have opinions on how they want their funds to be invested and wish to direct the investments to align with their values. For a majority of individuals, this influence is mainly through their retirement fund investments. However, trust law means that the ultimate power to decide on the investment process rests in the hands of trustees to act on behalf of all beneficiaries. And trustees also further delegate most investment decisions to the investment managers. The findings of this research, as other researchers have also found, suggests that individuals who have some knowledge of SRI show a greater willingness to invest in sustainable funds. It also suggests that after choosing the type of funds that they wish to invest in, individuals place a lot of trust in their trustees to act in their best interests by investing responsibly. The research explores the various dynamics that are at play that explain individual behaviour and attitudes towards financial planning with regards to their retirement investments. The implications of my findings may have relevance in understanding what drives individuals to become active in the investment arena and may serve as a harbinger to changes in fiduciary relationships as we know them. Further research can be done in this area that will assist policy makers to consider regulation changes that could lead to the greater inclusion of final beneficiaries in the investment management process.

Fiduciary in comparative context Abstract In this doctor thesis, the author is focused on explaining the historical context of the trust institute development, followed by comparison between jurisdiction in England, Lichtenstein, France, Germany and the Czech Republic. The author also points out differences between traditional common law and continental law systems. Even though the differences between local systems are quite significant, the trust system is gaining popularity across the countries for its flexibility of asset management. Just as the Quebec trust was inspired over time by the adjustment of the trust according to common law, the Czech legislator should proceed to amend the individual provisions of the trust fund so that its usability is as wide as possible. A different way from traditional common law has emerged in Germany, where Treuhand was created with German law leaving a wide margin of discretion and the codified part is a minority, as is the case with the French fiduciary. The great differences between the national regulations of trusts or trust-like institutes necessarily lead to the question of whether it is not appropriate to make certain legislative improvements. It is the comparison and knowledge of the most effective and flexible methods that allows us to make a correct and...

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Made available in DSpace on 2016-04-26T20:19:49Z (GMT). No. of bitstreams: 1 Alexandre Laizo Clapis.pdf: 2525677 bytes, checksum: 20816b6035d54337908241e5629d9294 (MD5) Previous issue date: 2010-10-27 / The purpose of this work is to review general issues related to a type of security, the fiduciary ownership of real estate (propriedade fiduciária imobiliária) associated with practical aspects of its registration. The fiduciary ownership was introduced in the Brazilian legal system by Federal Law No. 9,514/1997, although it has been being used to secure the financing of durable goods for a long time. After the issuance of such law, within the scope of the Brazilian Real Estate Financing System SFI, the fiduciary ownership of real estate emerged as an alternative to the weakened Brazilian Housing System SFH. The Brazilian real estate market benefited from the introduction of a new type of fiduciary security. In particular because the mechanisms available to the creditor to recover its credit were expedited and improved with the sale of the property at extrajudicial public auctions, this is to say, with the possibility of the fiduciary/trustee (fiduciário) to recover the amount financed with no need to file a judicial execution proceeding that is knowingly more time consuming and involves higher costs. To understand the current features of the Brazilian fiduciary ownership of real estate, one must return to the origin of the institute, particularly to the fidúcia (trust) of Roman Law and the one that has appeared in Germanic Law because one has served itself from the failure of the other in an attempt to improve its structure and introduce, in the German fiduciary relationship, the resolvable condition resulting from the law rather than from the fiduciary s will, as it happened in Roman Law. However, in any of those origins, it is possible to notice that the special attractive of this type of security is the transfer of the title to the fiduciary, so that the security is created on a creditor s asset. Because of the increasing use of this type of security, Brazilian courts have already had the opportunity to pronounce on fundamental aspects such as the constitutionality of the extrajudicial enforcement of the security consisting of the fiduciary ownership of real estate in other words, the mandatory public auctions, in case of default of the fiduciary agent (fiduciante) does not violate constitutional commandments of access to courts and full defense and, similarly, the structure of reimbursement of the fiduciary and the fiduciary agent, in case there is any balance after the sale at an extrajudicial public auction does not violate Article 53 of the Brazilian Consumers Defense Code / Neste trabalho são analisados os temas gerais relacionados a um tipo de garantia real, a da propriedade fiduciária imobiliária, aliados aos aspectos práticos registrários. Essa propriedade foi introduzida em nosso sistema jurídico pela Lei Federal nº 9.514/1997, mas nosso ordenamento há muito já se serve de tal modalidade de garantia real para financiamento de coisas móveis de consumo durável. A propriedade fiduciária imobiliária, com a edição da referida lei, no âmbito do Sistema de Financiamento Imobiliário SFI , surgiu como alternativa para o enfraquecido Sistema Financeiro Habitacional SFH. O mercado imobiliário brasileiro foi favorecido pela introdução da nova modalidade de garantia real fiduciária. Especialmente pelo fato de que os mecanismos de recuperação do crédito pelo credor foram agilizados e melhorados com a alienação da coisa por meio dos leilões públicos extrajudiciais, ou seja, com a possibilidade de o fiduciário recobrar o valor financiado sem que seja necessário buscar a execução judicial que, sabidamente, é morosa e de custo elevado. Para compreender os atuais contornos da propriedade fiduciária imobiliária brasileira deve-se retornar às origens do instituto, especialmente à fidúcia do Direito Romano e à fidúcia que surgiu no Direito Germânico, pois uma serviu-se da causa do fracasso da outra para tentar aprimorar sua estrutura e introduzir, na relação fiduciária alemã, a condição resolúvel decorrente da lei e não da vontade do fiduciário, como era para os romanos. Contudo, em qualquer das origens é possível notar que o especial atrativo dessa modalidade de garantia é a transferência da propriedade para o fiduciário, de forma que a garantia é constituída sob coisa do credor. Pela crescente utilização dessa modalide de garantia real imobiliária, os tribunais brasileiros já tiveram oportunidade de se manifestar sobre aspectos fundamentais, como a constitucionalidade da execução extrajudicial da garantia fiduciária imobiliária ou seja, os leilões públicos obrigatórios, em caso de inadimplemento do fiduciante, não ferem os preceitos constitucionais de acesso à justiça e de ampla defesa, e, da mesma forma, a estrutura de ressarcimento do fiduciário e do fiduciante, caso haja saldo após a alienação em público leilão estrajudicial, não afronta o art. 53 do Código de Defesa do Consumidor

This dissertation envisages the investigation and determination of the possible correlation between the two phenomena, state custodianship and trusteeship with specific reference to land trusts. Custodianship, as captured in the Mineral and Petroleum Resources Development Management Act 28 of 2002, and trusteeship, as embodied in the South African Development Trust legislation, being the Native Trust and Land Act 18 of 1936; the Ingonyama Trust Act 3 of 1994 as enacted by the KwaZulu Legislature on the 24th of April 1994, amended with the status of a national Act (provincial Act) in 1997, and re-enacted [by the RSA Parliament] as the KwaZulu-Natal Ingonyama Trust Act 3 of 1994, and the National Water Act 54 of 1956, all confer upon a certain body, the fiduciary obligation to hold, protect and manage certain resources in the interest of a particular designated group of people. The objective of this study is, therefore, to analyse the trust notion as it functioned in terms of the SADT legislation, ITA and the NWA, and compare it to the novel concept of custodianship as it emanates from the MPRDA in order to determine the inherent similarities and differences as well as the implications thereof. This will assist in determining the true nature and impact of the notion of state custodianship as introduced by the MPRDA. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015