Independent contract, although it is next to the main contract for which it exercises, in the broad sense, a guarantee function or the application of the corresponding obligations. The trust agreement is therefore functionally linked to the underlying principal activity, but may be concluded in a separate letter if it is not included in the text of the same contract that it is to guarantee. On the other hand, the Escrow constitutes a considerable disadvantage for those who lend the property, namely that the res is immobilized for a certain period of time in order to guarantee the possible claim of the third party and cannot be used by the resors; In that regard, it could be regarded as an incriminating decision. © The parties to the report may therefore be considered fully protected by the use of the Trust, given that the assets or the sum of money are constituted in trusts and the agent (custodian) must manage them in accordance with the guidelines set out in the instrument of incorporation, the conditions of the contract being met to release or remit the sums held. The term “escrow” actually derives from the French language “escroue”, which was to designate the parchments (literally “bout of paper”) on which contracts were signed that were valid only in the event that a particular event had occurred, obliging the contracting parties to refine the agreements concluded. In the United States, its use is also carried out in the context of ore and group actions, since the Escrow is a contractual form expressly subject to national legislation. Indeed, the nature of the fiduciary contract is attributed to the fiduciary institution. The Escrow Agreement is an instrument which is not subject to the Italian legal order. First of all, we can indicate how it is a contractual agreement in which a person deposits a movable property (or a written document of transfer of ownership) that is the subject of the main relationship with a depositary (said holder) who undertakes to hand it over to another person (beneficiary, with the exception of the depositary) when a particular event occurs or after a given service has been performed.
If the event is not realized, it must be returned to the depositor. In contrast, in the trust agreement, the custodian is by definition an impartial third party who is not bound to the depositor by a trust agreement. Trust, as has already been said, is, in this case, more a source of trust than the cause of the fiduciary procedure. But nothing prevents – and practice has several applications – from “hybridizing” the figure of the fiduciary agent in the structure of a trust agreement. in particular by transferring an amount to a trust company: in summary, the amount cannot be transferred directly to the trust company (holder or agent), but directly to the trust company (or, where appropriate, to the directors) of the trust company, and the trust fund (agent) has the task only of providing the trustee with the tasks that the Commission will undertake to perform only if and to the extent that they are delivered by the first. With a contractual structure of four people, a subjective separation is made between the owner of the assets and the person who must implement the objective of trust. This will make it possible to achieve the objective of a total separation of the assets entrusted without recourse to the trust and to avoid that, in addition to the possible mismanagement of the agent during the holding, the holder of the trust can be considered, at least in appearance, as the holder of the assets that have all the consequences on the discipline of the fight against money laundering and the fear of any claim from third parties. .