The security fiducie has established itself as the most sophisticated guarantee under French structured-financing law. The asset is transferred into a distinct fiduciary patrimony, which allows an efficient realisation, in principle sheltered from the settlor's insolvency proceedings, and precise coordination with bank pools. The Cass. com., 22 January 2025 (no. 22-20.526), concerning a transfer of equity securities into a fiducie and an application for a provisional administrator, illustrates the force of the divestment operated in favour of the fiduciary. The firm, registered with the Paris & Geneva Bars, structures and defends these transactions.
The fiducie (Civil Code art. 2011 et seq.) allows a settlor to transfer assets, rights or security to a fiduciary, who holds them in a separate ring-fenced patrimony, with a duty to act for the benefit of one or more beneficiaries. As a form of guarantee, the security fiducie dedicates this mechanism to securing a claim: the asset is removed from the settlor's own assets to guarantee repayment.
The decisive strength is the segregation of the fiduciary patrimony: the transferred assets are no longer among the settlor's assets and, in principle, escape the latter's insolvency proceedings, subject to the availability agreements making the asset available to the settlor, which call for rigorous drafting. This is what distinguishes the security fiducie from classic real security (mortgage, pledge), often neutralised or slowed by the opening of safeguard or reorganisation proceedings.
The realisation is also more efficient: in the event of non-payment, the beneficiary becomes full owner or has the asset sold according to the agreed terms, without the burden of a classic seizure. For bank pools and leveraged financings, this predictability explains the tool's return to favour.
The Cass. com., 22 January 2025 (no. 22-20.526), published in the bulletin, offers an illustration: concerning a transfer of equity securities into a fiducie securing a bond issue, the Court confirms the scope of the settlor's divestment: the fiduciary exercises the prerogatives attached to the transferred rights. Transposed, the logic holds for the real-estate security fiducie: once the asset is transferred, the settlor can no longer dispose of it.
The power of the security fiducie lies in its drafting. The fiducie contract, the choice of fiduciary and the coordination with other creditors determine the real effectiveness of the guarantee.
Precise definition of the transferred assets, the fiduciary's mission, the realisation events and the return terms. The choice of an authorised fiduciary (credit institution, lawyer, investment firm) determines the security of the transaction.
Coordination of ranks, designation of beneficiaries, security agent and sharing clauses. The security fiducie integrates into syndicated financings by clarifying who controls the asset in the event of default.
Securing the realisation in the event of default: attribution to the beneficiary or sale, taking into account the availability agreements making the asset available to the settlor, which may reintroduce the asset into the scope of the proceedings if poorly drafted.
The fiducie regime seeks tax neutrality where the settlor is the beneficiary; transfers, registration duties and exit consequences must be anticipated from the structuring stage.
Maître Jonathan Bensaid, founding partner, structures and defends real-estate security fiducies in structured financings: drafting of the fiducie contract, choice of fiduciary, coordination with bank pools and securing of the realisation. The firm is registered with the Paris & Geneva Bars and acts both as counsel and in litigation.
It is a guarantee by which a settlor transfers ownership of a real-estate asset (or the securities of a real-estate company) to a fiduciary, who holds it in a separate ring-fenced patrimony for the benefit of a beneficiary creditor, as security for a claim. In the event of default, the beneficiary can have the asset attributed to it or have it sold according to the terms set out in the fiducie contract, without resorting to a classic seizure.
Because the asset leaves the settlor's own assets to join a distinct fiduciary patrimony. It escapes, in principle, the settlor's insolvency proceedings, whereas a mortgage or a pledge may be neutralised or slowed by the opening of safeguard or reorganisation proceedings. The realisation is, moreover, faster and more predictable, which reassures lenders and bank pools.
The judgment, published in the bulletin, concerns a transfer of equity securities into a fiducie securing a bond issue and an application for the appointment of a provisional administrator. It confirms the scope of the divestment operated by the fiducie: the fiduciary exercises the prerogatives attached to the transferred rights. This logic illustrates, for the real-estate security fiducie, that once the asset is transferred, the settlor may no longer dispose of it.
In principle yes, because the transferred assets no longer form part of the settlor's own assets. Vigilance concerns the availability agreements making the asset available to the settlor: poorly drafted, they may reintroduce the asset into the scope of the proceedings. Careful structuring is therefore decisive in preserving the effectiveness of the guarantee.
The firm, registered with the Paris & Geneva Bars, structures the security fiducie (fiducie contract, choice of fiduciary, coordination with bank pools and the security agent), secures the realisation terms and defends the transactions in the event of litigation. It acts for lenders as well as for borrowers on structured real-estate financings.
Related resources on the fiducie, security and structured financings.
Creation, management and security: the fiduciary tool in the service of wealth and financing.
Voir la page Area of expertiseSetting up and defending French fiducies and recognition of foreign structures.
Voir la page Area of expertiseTax structuring of real-estate transactions and backed financings.
Voir la page Lead counselFiducie, security and structured financings.
Voir la pageA confidential initial consultation. Drafting of the fiducie contract, choice of fiduciary, coordination with bank pools, securing of the realisation and defence of structured-financing transactions.
Written by
Me Jonathan Bensaid, avocat fiscaliste, fondateur du cabinet Bensaid Avocats, inscrit aux Barreaux de Paris & Genève.
© BENSAID Avocats — This article is educational and indicative. It does not constitute personalised legal advice. Sources: Civil Code art. 2011 et seq. (fiducie); art. 2372-1 et seq. / 2488-1 et seq. (security fiducie); Commercial Code (insolvency proceedings); Cass. com., 22 January 2025, no. 22-20.526, published in the bulletin. Update: June 2026.