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Glossary entry

Portuguese term or phrase:

alienar fiduciariamente

English translation:

settle on and into trust

Added to glossary by Adrian MM.
Feb 4, 2020 18:55
4 yrs ago
59 viewers *
Portuguese term

alienar fiduciariamente

Portuguese to English Bus/Financial Business/Commerce (general)
In the following:

No âmbito da parceria celebrada entre a X com o Banco Y S.A., foram alienadas fiduciariamente para o Banco Y, 500 ações ordinárias de emissão da Companhia e de titularidade de alguns dos acionistas controladores,

Thanks!
Proposed translations (English)
3 settle on and into trust
4 to divest in a fiduciary form
4 finance by chattel mortgage
4 dispose of by means of trust receipt
4 grant of an equitable pledge/equitable security interest
References
alienação fiduciária (em garantia)
Change log

Feb 14, 2020 15:33: Adrian MM. Created KOG entry

Discussion

Mario Freitas Feb 6, 2020:
@ Adrian Indeed. How many times do we do researching and discuss with colleagues until we find a solution, only to hear the client say "please use XXX instead". It's pretty irritating.
Adrian MM. Feb 6, 2020:
@ Mario That's a good idea, Mario, as - 9 times out of 10 - legal clients off ProZ pick my answer.
Mario Freitas Feb 6, 2020:
@ Mark Thanks for the explanation. This is a tough one. I'm curious how Judith is gonna sort this one out. I'd ask the client if I were in her shoes.
Mark Robertson Feb 6, 2020:
@Mário Yes, there is an issue here as the source and target legal terms and their underlying concepts are not completely equivalent. The civil law concept of bens móveis does not correspond exactly to the common law concept of Personal Property (Personalty), added to which there are various categories of personalty to which specific rules apply. Accordingly, the correct translation of alienação fiduciária will vary according to the context. For example, two key variables will be the type of coisa móvel alienado (chattel or chose in action) and the structure of the underlying transaction. In our case, the bank receives non-possessory security over shares (which, at least in the UK and the US are a chose in action) not from the debtor X but from its shareholders to secure the obligations of X. In a trust receipt transaction coisa móvel alienada (the non-possessory security) is chattels (goods) and is provided by the debtor (the trader and the bank's customer) and not a third party. These differences in the specific nature of the transaction, both of which translate into PT-BR as alienação fiduciária, mean that the correct EN-US/EN-GB terms differ.
Mario Freitas Feb 5, 2020:
@ Mark I'm not sure how this is viewed in the US legal system, but in Brazil, we have either real estate or chattel, i.e., bens imóveis and bens móveis. Securities would fit into the second category (títulos mobiliários). And I don't thing the trust receipt applies only to goods in transit, per your definition below (again, in Brazil). It would apply to any asset other than real estate, therefore securities would be included. However, I'm hardly ever sure how things are interpreted in the American system, and it's usually different than ours around here.
Mark Robertson Feb 5, 2020:
@Adrian Chattel mortgages of shares seem to be viable in some jurisdictions, see Monserrat v Ceron ARCELLANA, G.R. No. L-42091, November 2, 1935, in the Supreme Court of the Philippines
Mark Robertson Feb 5, 2020:
@Gilmar I agree that alienação fiduciária is equivalent to chattel mortgage (in the US), where the "coisa móvel alienada" is a chattel. However, chattel mortgages were superceded by security interests with the introduction of the Uniform Commercial Code (see Art. 9 (Secured Transactions)) and Blacks Law Dictionary, 6th Edition, page 237. In any event shares are not chattels, as Adrian points out.
https://en.wikipedia.org/wiki/Uniform_Commercial_Code
https://en.wikipedia.org/wiki/Security_interest#Pledge
Mark Robertson Feb 5, 2020:
@Mário Hi Mário,

Trust receipt is very near the mark but not quite all there. In a trust receipt arrangement the "coisa móvel alienada" is mercadorias/goods. We are dealing with shares.

"What Is Trust Receipt?
A trust receipt is a notice of the release of merchandise to a buyer from a bank, with the bank retaining the ownership title of the released assets. In an arrangement involving a trust receipt, the bank remains the owner of the merchandise, but the buyer is allowed to hold the merchandise in trust for the bank, for manufacturing or sales purposes."

"In the normal course of running a trade business, companies purchase goods for their inventories from vendors or wholesalers to resell to consumers or to manufacture goods. These goods may either be purchased locally or imported from other companies. When these companies receive the merchandise, they are also billed by the seller or exporter for the goods purchased. In the event that the firm does not have the required cash on hand to settle the bill, it may obtain financing from a bank via a trust receipt."

https://www.investopedia.com/terms/t/trust_receipt.asp
Mario Freitas Feb 5, 2020:
And I keep my suggestion. I still think it's a disposal of assets under trust receipt.
Adrian MM. Feb 5, 2020:
chattel mortgage/bill of sale/statutory lien I agree that company shares can, by E&W company law text definition, be mortgaged to the Bank, but shares are not chattels rather 'choses in action' (enforceable by legal action), so unamenable to a chattel mortgage a.k.a. a conditional bill of sale by way of mortgage, say, of a lawn mower (vs. an absolute bill of sale in Anglo-Am. law, like a receipt for a TV set). I have taken out bills of sale as chattel mortgages in the High Court of Justice in London and they have all been of motor cars 'charged or assigned by a chargor (borrower) to a chargee (lender)'.

Statutory lien in E&W could refer to a statutory charge given to Legal Aid Fund for non-payment of a legal-aid bill-contribution or refer to a 'charging order' as a compulsory judicial mortgage over company shares for enforcement of a debt.

I would agree, though, that syntactically 'disposed of subject to an equitable lien' - to paraphrase Mark R.'s equitable pledge - for alienadas fiduciariamente might be closer to the concept.
Mario Freitas Feb 5, 2020:
Difícil Parece que ninguém chega a um acordo sobre esse termo:
1. CPC bilíngue Editor Podivm: Secured transation/fiduciary sale
2. Marcílio Moreira: Secured fiduciary sale
3. Finance - Price:chattel mortgage
4. Dicionário Técnico de Negócios: Statutory Lien
5. Glossário de Finanças e Economia: Statutory Lien
6. Glossário bilíngue de termos de finanças: Trust receipt
7. Glossário Paola Staeblein:Fiduciary Lien
8. Termos Técnicos e Jurídicos:Trust Receipt
9. Dicionário de Direito Minerário:Chattel Mortgage
10. Dicionário de Negócios: Statutory Lien
11. Dicionário de Termos Financeiros e Investimento: Trust Certificate

Proposed translations

3 hrs
Selected

settle on and into trust

Literally: dispofe of and transfer into a trust.

vs. a strict family settlement - in English law - tying up land into future generations
Example sentence:

A lifetime transfer of assets into a discretionary trust is a ‘chargeable lifetime transfer’. It can immediately trigger a charge of 20% on the amount settled in excess of the client’s nil-rate band, which could deter many clients-

Reference:

http://octopusinvestments.com/adviser/adviser-centre/document-library/clients-looking-settle-assets-trust/

http://eng.proz.com/kudoz/english-to-spanish/law-general/5407957-settle-on.html

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4 KudoZ points awarded for this answer. Comment: "thanks"
8 mins

to divest in a fiduciary form

I think this is appropriate.
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38 mins

finance by chattel mortgage

There are some examples in older Kudoz answers and also on Linguee.
Unfortunately, I’m unable to post link to these at the moment.
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1 hr

dispose of by means of trust receipt

https://www.google.com.br/search?biw=967&bih=737&sxsrf=ACYBG...

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Note added at 5 hrs (2020-02-05 00:49:44 GMT)
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No entanto, basta pesquisar a definição de "Alienação Fiduciária" e de "Trust Receipt" para ver que são exatamente a mesma coisa.
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4 hrs

grant of an equitable pledge/equitable security interest

Neste caso há uma transferência de 500 ações na sociedade X ao Banco Y pelos acionistas principais da sociedade X para garantir as obrigações da sociedade X (o devedor) ao Banco Y (o credor), embora as ações permanecem na posse dos acionistas na qualidade de depositários fiduciários das mesmas.

The equivalent situation in the US or UK involves the grant to Y bank of a security interest in (US) or pledge of (UK) the shares in X by its shareholders to secure X's indebtedness to Y. As actual possession of the shares does not pass to the bank, the pledge is termed an equitable security interest (US) or equitable pledge (UK).

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Note added at 4 hrs (2020-02-04 23:39:50 GMT)
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https://www.lexology.com/library/detail.aspx?g=934a0856-7fcb...


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Note added at 13 hrs (2020-02-05 08:27:41 GMT)
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I have excluded non-possessory or equitable lien as a possible answer because pledge is the standard term for an inter partes security transaction of shares and because a non-possessory or equitable lien is almost always a court-imposed remedy rather than a type of contract.
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Reference comments

4 hrs
Reference:

alienação fiduciária (em garantia)

(...) é a operação pela qual se transfere ao credor o domínio resolúvel e a posse indireta da coisa móvel alienada, independentemente da tradição efetiva do bem, tornando-se o alienante ou devedor em possuidor direto e depositário, com todas as responsabilidades e encargos civis e penais.

Vocabulário Jurídico De Plácido e Silva, 28ª Edição, pág. 94
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