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The concept of a “Foundation” has
been well known in Latin Law countries for several centuries. It
is a legal entity separate from its creators, constituted through
one sole donation or several donations that form an independent
and autonomous estate for a definite purpose. A Foundation is a
legal entity that is different from any other entity known in Anglo-Saxon
Law, as a Foundation is not the legal personification of any other
person or persons but a body corporate that has no owners (shareholders,
participants or partners), and which traditionally has charitable
or philanthropic aims for the benefit of a generality of persons.
Historically Foundations were born during the Middle Ages, at
the end of the Roman Empire under the influence of Christianism.
The Church itself was considered a divine foundation and its various
organisations needed to be endowed with assets and legal capacity
to manage such assets. It is thus that Canon Law of the Middle
Ages developed the juridical theory of Foundation, on which religious
congregations and convents were built.
After centuries, that legal entity called a “Foundation”,
created by the Church on an essentially “Roman-Germanic”
basis, continues to exist. Indeed, most of the countries in the
world acknowledge and promote the creation of “Public Foundations”
which are strictly non-profit organisations created by individuals
for the benefit of society, generally subject to rigorous procedures
in their creation and control. The so-called “Traditional
Foundation” or “Public Interest Foundation”
may not engage in private interest activities and may not carry
out business transactions even on a non-habitual basis.
The Principality of Liechtenstein took a major step with the
enactment of its Law on persons and Companies of 20th January
1926 (Personen und Gesellschaft Recht – P.G.R.) which
created “Family Foundations” (for the personal benefit
of members of one or more families), “Mixed Foundations”
(for the benefit not only of relatives but also of other persons
or institutions). The “Family Foundation” also exists
as a legal entity in Austria, but it is not used worldwide as
this country is not a fiscal haven. There are Luxembourg Foundations,
which have features differing from those of Liechtenstein and
are also little used on an international level. Additionally,
Curacao Foundations were developed in recent years.
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