Les situations de gestion sont souvent complexes. Il faut faire appel à différents professionnels lorsque l'on souhaite accroître la valeur de son patrimoine. Les protagonistes de la gestion, qu'ils soient notamment mandataires, fiduciaires, salariés ou dirigeants sociaux, interviennent dans un cadre légal qui leur est propre. Le propriétaire use de son droit de propriété afin de conclure les contrats qui lui permettent de valoriser ses biens comme il l'entend. Ce travail porte sur la gestion conventionnelle des biens d'un bénéficiaire capable du vivant de celui-ci. Le gestionnaire gère les biens sur la durée et ignore l'état du patrimoine à la fin de la gestion. Le juriste français aborde spontanément la question sous l'angle de la représentation ou de la propriété qu'il s'agisse de la fiducie ou des trusts. Cette technique anglo-saxonne repose sur un rapport d'obligations particulier unissant le trustee au bénéficiaire qu'il est intéressant d'examiner afin de mieux comprendre la gestion. L'imputation systématique des actes du gestionnaire sur le patrimoine du bénéficiaire n'est pas souhaitable. C'est pourquoi l'hypothèse de travail est celle d'une gestion sans représentation. L'analyse du droit positif menée en première partie montre que, nonobstant la représentation, une technique de gestion efficace sur la durée repose sur les pouvoirs d'organisation et de direction conférés au gestionnaire. Le premier est celui d'accomplir une action c'est-à-dire un acte ou une série d'actes juridiques ou matériels. Le second permet d'apprécier l'opportunité d'une action. La seconde partie est consacrée à la recherche d'un cadre juridique adapté à la gestion. / When it comes to management in English law, trust law often is an important issue. Company directors, solicitors, trustees managing estates equally are fiduciaries and therefore have to take similar rules into account notwithstanding specific legislation. Thanks to Equity, the English share a common framework which allows them to deal with almost every situation in which management is required. Frenchmen do not rely on Equity and its principles to manage property. This work analyses the following case : an owner enters into a contract in order to have his property managed by a manager. Numerous techniques are available under French law.All of them are related to ownership or agency. Since a fiducie inspired by trusts has been introduced as an ownership-based technique trusts are studied alongside ownership-based techniques. The key role of fiduciary duty is analysed. The first part of this work shows that to manage effectively across time a manager must exercise two powers. The first one called organisation is the ability to act, the second one called direction is the ability to decide whether to act. The second part focuses on framing a new approach of management in French law.

Prior studies on the impact of the termination of overfunded defined benefit pension plans on shareholders' wealth have produced conflicting findings. The first study on the stock market reaction to pension plan termination was conducted by Alderson and Chen (1986); this study claimed that shareholders realize significant positive abnormal returns around the termination announcement date. A more recent study, by Moore and Pruitt (1990), disclaimed the findings of Alderson and Chen. Reexamination of these two studies with additional evidence and the use of the appropriate announcement date suggests that termination of pension plans is associated with significant wealth gain to shareholders. This study also analyzes samples from periods prior to and after the imposition in 1986 of a 10 percent excise tax on recaptured excess pension assets. The empirical results suggest that shareholders experience significant positive wealth effects for the pre-tax (1980-85) period and no wealth effects for the post-tax (1986-88) period. The primary purpose of this study is to determine the impact of stock market reaction upon shareholders' wealth under the partial anticipation hypothesis. The pre-tax sample is analyzed by isolating the expected terminators using the multiple discriminant analysis model. This study finds significant positive abnormal returns only for firms that are not anticipated by the investors as potential terminators. The results of this study do not lend support to either the "separation" or the "integration" hypothesis as proposed by Alderson and Chen (1986). Instead, the results are consistent with the information hypothesis that the market reacts to unanticipated events that provide new information. Cross-sectional regression analysis of unexpected terminators suggests that the abnormal performance of stocks of pension terminating firms is explained by the firms' debt ratio and the amount of surplus pension assets. It can be inferred that firms may resort to recapturing excess pension assets as a way of financing investments internally when faced with unfavorable credit markets.

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O presente trabalho trata de tema extremamente útil, porém ainda pouco trabalhado pela doutrina brasileira. A Lei no 8.668/93, que criou os Fundos de Investimento Imobiliário (FII) no Brasil, foi o primeiro diploma a permitir a securitização e fracionamento da propriedade imobiliária, convertendo-a em valores mobiliários passíveis de negociação no mercado de capitais. Os Fundos de Investimento Imobiliário viabilizaram o acesso de pequenos investidores, incluindo pessoas físicas, ao mercado imobiliário, viabilizando a aplicação em empreendimentos de alto retorno que, entretanto, demandam grandes investimentos. A análise da natureza jurídica do FII se justifica pela importância econômica e social do instituto, mas a esta não se restringe, tendo em vista a riqueza do conteúdo jurídico-normativo que culminou na criação de uma modalidade diferenciada de fundo de investimento, espelhada no modelo norte americano, o Real Estate Investment Trust. O Fundo de Investimento Imobiliário é um exemplo bem sucedido da criatividade legislativa, que através da combinação de institutos alcançou o que consideramos ser a figura no Brasil que mais se assemelha ao trust anglo saxão. A estrutura atribuída ao FII, marcada, em especial, pela propriedade fiduciária e pelo regime de afetação, revestem o Fundo de peculiaridades que reclamam a análise de sua natureza jurídica sob uma perspectiva própria, e diferenciada dos demais fundos de investimento. A investigação acerca da natureza jurídica do FII requer a releitura de conceitos que transitam entre o Direito Civil e o Direito Comercial, tais como de comunhão, condomínio e sociedade, negócio fiduciário, negócio indireto, propriedade, direitos reais e pessoais, patrimônio separado, pessoa jurídica e sujeito de direito, de cujo resultado decorre o reconhecimento do Fundo de Investimento Imobiliário como contrato de sociedade, caracterizado pela perseguição de uma finalidade econômica através de uma organização. O escolha do tema e a metodologia empregada no desenvolvimento deste trabalho tiveram por objetivo não só o aprofundamento da matéria, mas também a inspiração de outros estudos com base na common law, que possam igualmente levar à conclusão a respeito da beleza e eficiência de um sistema legal construído sobre estruturas abertas e mais flexíveis. / The theme of this paperwork is extremely useful, but not so much explored by Brazilian doctrine. The Law 8.668/93, which created in Brazil the Real Estate Investment Funds (Fundos de Investimento Imobiliário FII), was the first statute to allow the securitization and fractionation of real estate, converting it into subject securities traded in the capital market. The Real Estate Investment Funds enabled retail investors, including individuals, to access the real estate market, qualifying them to apply their resources on high-return ventures that, however, require large investments. The analysis of the legal nature of the FII is justified by the economic and social importance of the institute, but is not restricted thereto taken the enriched content of the legal-normative framework that culminated in the creation of a unique model of investment fund, mirrored in the North American Real Estate Investment Trust. The Real Estate Investment Fund is a successful example of legislative creativity that by combining institutes reached what we consider to be the figure in Brazil that most resembles the Anglo Saxon trust. The structure assigned to the FII, marked in particular by the fiduciary property and the rules of affectation, lines the Fund with certain peculiarities that demand the analysis of its legal nature under its own perspective, isolated from the other investment funds. Research on the legal nature of FII requires the reinterpretation of concepts that integrate both the Civil and Commercial Law, such as communion, condominium and company, fiduciary relationship, indirect relationship, property, real rights and personal rights, separated patrimony, legal person and capacity, which result leads to a due recognition of the Real Estate Investment Fund as a corporate agreement, characterized by the pursuit of an economic purpose through an organization. The choice of the theme and the methodology applied for the development of this paperwork aimed not only to deepen the matter, but also to inspire further studies based on the common law that could also lead to the conclusion about the beauty and efficiency of a legal system built on open and more flexible structures.

O presente trabalho trata de tema extremamente útil, porém ainda pouco trabalhado pela doutrina brasileira. A Lei no 8.668/93, que criou os Fundos de Investimento Imobiliário (FII) no Brasil, foi o primeiro diploma a permitir a securitização e fracionamento da propriedade imobiliária, convertendo-a em valores mobiliários passíveis de negociação no mercado de capitais. Os Fundos de Investimento Imobiliário viabilizaram o acesso de pequenos investidores, incluindo pessoas físicas, ao mercado imobiliário, viabilizando a aplicação em empreendimentos de alto retorno que, entretanto, demandam grandes investimentos. A análise da natureza jurídica do FII se justifica pela importância econômica e social do instituto, mas a esta não se restringe, tendo em vista a riqueza do conteúdo jurídico-normativo que culminou na criação de uma modalidade diferenciada de fundo de investimento, espelhada no modelo norte americano, o Real Estate Investment Trust. O Fundo de Investimento Imobiliário é um exemplo bem sucedido da criatividade legislativa, que através da combinação de institutos alcançou o que consideramos ser a figura no Brasil que mais se assemelha ao trust anglo saxão. A estrutura atribuída ao FII, marcada, em especial, pela propriedade fiduciária e pelo regime de afetação, revestem o Fundo de peculiaridades que reclamam a análise de sua natureza jurídica sob uma perspectiva própria, e diferenciada dos demais fundos de investimento. A investigação acerca da natureza jurídica do FII requer a releitura de conceitos que transitam entre o Direito Civil e o Direito Comercial, tais como de comunhão, condomínio e sociedade, negócio fiduciário, negócio indireto, propriedade, direitos reais e pessoais, patrimônio separado, pessoa jurídica e sujeito de direito, de cujo resultado decorre o reconhecimento do Fundo de Investimento Imobiliário como contrato de sociedade, caracterizado pela perseguição de uma finalidade econômica através de uma organização. O escolha do tema e a metodologia empregada no desenvolvimento deste trabalho tiveram por objetivo não só o aprofundamento da matéria, mas também a inspiração de outros estudos com base na common law, que possam igualmente levar à conclusão a respeito da beleza e eficiência de um sistema legal construído sobre estruturas abertas e mais flexíveis. / The theme of this paperwork is extremely useful, but not so much explored by Brazilian doctrine. The Law 8.668/93, which created in Brazil the Real Estate Investment Funds (Fundos de Investimento Imobiliário FII), was the first statute to allow the securitization and fractionation of real estate, converting it into subject securities traded in the capital market. The Real Estate Investment Funds enabled retail investors, including individuals, to access the real estate market, qualifying them to apply their resources on high-return ventures that, however, require large investments. The analysis of the legal nature of the FII is justified by the economic and social importance of the institute, but is not restricted thereto taken the enriched content of the legal-normative framework that culminated in the creation of a unique model of investment fund, mirrored in the North American Real Estate Investment Trust. The Real Estate Investment Fund is a successful example of legislative creativity that by combining institutes reached what we consider to be the figure in Brazil that most resembles the Anglo Saxon trust. The structure assigned to the FII, marked in particular by the fiduciary property and the rules of affectation, lines the Fund with certain peculiarities that demand the analysis of its legal nature under its own perspective, isolated from the other investment funds. Research on the legal nature of FII requires the reinterpretation of concepts that integrate both the Civil and Commercial Law, such as communion, condominium and company, fiduciary relationship, indirect relationship, property, real rights and personal rights, separated patrimony, legal person and capacity, which result leads to a due recognition of the Real Estate Investment Fund as a corporate agreement, characterized by the pursuit of an economic purpose through an organization. The choice of the theme and the methodology applied for the development of this paperwork aimed not only to deepen the matter, but also to inspire further studies based on the common law that could also lead to the conclusion about the beauty and efficiency of a legal system built on open and more flexible structures.

This mini-dissertation is aimed at analysing the requirements the court takes into consideration when deciding to pierce a trust veil in either insolvency or divorce matters. A clear exposition of the legal nature of a trust is provided to determine how a trust affords the extensive protection to trust assets, the very characteristic that makes it as popular as it is today. It is due to this protection of trust assets that a trust has become the object of abuse by founders and trustees, and the court has felt it necessary to introduce a remedy. In Badenhorst v Badenhorst the court stated that the company law doctrine of piercing the veil should be extended to trust law. Some authors criticised this judgement, and arguments pro(for) the extension is included in the conclusion. The research explored the circumstances that warrants the piercing of a trust veil and it was found that the court is likely to pierce a trust veil if the trust form was abused. The study then shifts its focus to the type of abuse the court seeks to remedy. A trust can amount to be the alter ego of a person or a court can deem a trust to be a sham. The research investigates the distinction between the two in depth, and the resultant finding is that only alter ego trusts will be pierced by a court, since a sham trust means that no valid trust has in fact been formed and therefore there is no veil to pierce. Often the courts are confused by the two and the likelyhood of a trust being labelled a sham by South African courts are slim. To find that a trust was abused, the courts will look at the essential requirements of forming a trust to determine the validity. The most important factors that the court considers when deciding to pierce the veil, is the type of control over the trust assets and the intention with which the trust is created or kept. An extensive analysis of the Companies Act and the doctrine of piercing the veil was done to probe their compatability with trust law and to see if the remedy is in fact effective and correctly applied. Case law to support the court‘s view and application of the mentioned doctrine is discussed and evaluated. The study closes with an evaluation of the procedure of piercing the veil and the consequences following such piercing, as well as the arguments for allowing piercing of a trust veil to force trust users to obey the basic trust idea of separation of enjoyment from control. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

This mini-dissertation is aimed at analysing the requirements the court takes into consideration when deciding to pierce a trust veil in either insolvency or divorce matters. A clear exposition of the legal nature of a trust is provided to determine how a trust affords the extensive protection to trust assets, the very characteristic that makes it as popular as it is today. It is due to this protection of trust assets that a trust has become the object of abuse by founders and trustees, and the court has felt it necessary to introduce a remedy. In Badenhorst v Badenhorst the court stated that the company law doctrine of piercing the veil should be extended to trust law. Some authors criticised this judgement, and arguments pro(for) the extension is included in the conclusion. The research explored the circumstances that warrants the piercing of a trust veil and it was found that the court is likely to pierce a trust veil if the trust form was abused. The study then shifts its focus to the type of abuse the court seeks to remedy. A trust can amount to be the alter ego of a person or a court can deem a trust to be a sham. The research investigates the distinction between the two in depth, and the resultant finding is that only alter ego trusts will be pierced by a court, since a sham trust means that no valid trust has in fact been formed and therefore there is no veil to pierce. Often the courts are confused by the two and the likelyhood of a trust being labelled a sham by South African courts are slim. To find that a trust was abused, the courts will look at the essential requirements of forming a trust to determine the validity. The most important factors that the court considers when deciding to pierce the veil, is the type of control over the trust assets and the intention with which the trust is created or kept. An extensive analysis of the Companies Act and the doctrine of piercing the veil was done to probe their compatability with trust law and to see if the remedy is in fact effective and correctly applied. Case law to support the court‘s view and application of the mentioned doctrine is discussed and evaluated. The study closes with an evaluation of the procedure of piercing the veil and the consequences following such piercing, as well as the arguments for allowing piercing of a trust veil to force trust users to obey the basic trust idea of separation of enjoyment from control. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

The first essay of this dissertation investigates the relationship between downside risk and returns of real estate investment trusts (REITs) and assesses the performance of real estate mutual funds (REMFs). We measure the asymmetric risk through downside and upside betas and through the measures incorporated higher moments such as coskewness and Leland's beta. We do not find significant contemporary relationship between the asymmetric risk and returns of REITs. There are only a small portion of REITs reacting to up and down market conditions differently. We find weak evidence that this asymmetric movement of REITs to market may be due to small and value components embedded in REITs. We evaluate the performance of real estate mutual funds (REMFs) from the asymmetric risk perception. According to our results, most of REMFs do not outperform the market. The downside risk helps to explain some of the abnormal returns associated with REMFs. However, the evaluation may be sensitive to the choices of the model and the market index being used. The second essay examines the liquidity of Asian REITs. We use various measures to assess the liquidity of JREITs and SREITs. The overall evidence indicates that the liquidity of JREITs is greater than that of SREITs. Comparing to non-REIT stocks, JREITs are less liquid than Japanese common stocks while there is no significant difference in liquidity between SREITs and Singaporean common stocks. There is also strong evidence that US REITs have smaller spreads and are traded more often than both JREITs and SREITs. We also find that the primary determinants of JREIT spreads are turnover and return volatility. The secondary factors that affect the spread of JREITs are life and property holdings. The dominant factors affecting SREITs' spreads are price, return volatility, and life. The significance of life suggests that there is a learning effect existed in both JREIT and SREIT markets in 2005.

On 1 May 2013, real estate investment trusts (REITs), a listed property product, had legislation about it introduced in the South African property market. Prior to the introduction of this REIT legislation, property unit trusts (PUTs) and property loan stocks (PLSs) were the two predominant types of listed property investment products in South Africa. However, both the PUT and PLS are subject to uneven regulation and taxation, and they lack flexibility. The REIT legislation was introduced to eliminate some of the problems of the PUTs and PLSs, by creating: a more unified tax treatment of listed property companies, more stringent regulatory requirements and uplifting the South African property market to a level that is internationally competitive. It is therefore considered valuable to empirically investigate whether or not the introduction of the REIT framework into the listed South African property market will be advantageous to investors, and whether or not it would lead to improvement in the efficiency, regulation and taxation of the listed property market. A questionnaire was used to collect primary data to analyze the research problem. The questionnaire used a Likert scale format that consisted of 20 questions. There were a total of 58 useable respondents, each of who fell into 1 of 5 occupational categories. The questions were divided into 4 unifying themes and the findings were analyzed according to these themes. From the analysis of the responses it was found that the REIT legislation is perceived as a welcomed and suitable introduction to the South African listed property market. We could also infer that REITs allow for a more favorable tax dispensation, improved regulation, increased international competitiveness and enhanced liquidity within the listed property market. Overall, there is a perception that investors, especially fund managers, would find it potentially advantageous to include South African REITs or a higher proportion of such REITs in their investment portfolios.

Listed property entities on the Johannesburg Stock Exchange fall under the category of ‘Financials - Real Estate’. There are four types of property entities that a prospective investor can consider namely: Property Unit Trusts, Property Loan Stock Companies, Real Estate Holding and Development Companies and Real Estate Investment Trusts. The listed property sector allows investors to enter the property investment market in a uniquely affordable and secure way without the added risk, expense and administration that comes with direct property investment. This study evaluates the investment performance of the various property fund types through the implementation of Jensen’s alpha, the Sharpe ratio and Treynor ratio in an effort to establish whether there is a significant difference in the returns that can be obtained from the diverse funds given the associated risks. An analysis of the total returns and standard deviation of the property industry shows that the real estate market is affected by changes that take place in the macro economy. It is also investigated whether there is a differential risk associated with investing in these funds. We find that there is no significant difference between the performances of the various funds and there is no differential level of risk associated with investing in the property funds. An analysis of the fluctuation of total returns and standard deviation of the property funds over the eleven year period shows that the property sector is affected by changes in economic conditions however the changes are not enough to cause colossal volatility. For instance, the global recession of 2008 had an impact on the property industry returns but the sector has since made a steady recovery.