– the depositary (escrow agent or escrow holder), i.e. the neutral and impartial third party to whom the asset is entrusted. This, to be clear, precisely because of the strong fiduciary nature of the established relationship, is not part of the main contract and therefore cannot claim rights to the fiduciary assets as assets that are not part of the main relationship. (g) the period from which the trust agreement takes effect (referred to as the “escrow date”); – In the case of leases, for example, it is important to have the guarantee of the performance of the obligations by the tenant. Since it is a guarantee agreement, the content of which varies according to the variation of the specific needs of the parties and the specificities of the main relationship between it, the essential elements of the escrow agreement are: it is now clear why this type of guarantee is becoming more and more widespread: the benefits for both parties are multiple and the risk of default of the counterparty is minimized. Of course, the fiduciary agreement must be expressly provided for in the main contract and also properly regulated: therefore, the parties must indicate what is the purpose of the deposit, who the depositor is and what his obligations are, as well as, of course, the conditions that he must fulfill towards the beneficiary or towards the depositor by returning the object of the guarantee. Our legal system already provides for institutions such as conventional seizure, filing in the interest of a third party, contract in favour of the third party and, more often, irrevocable mandate, which, with their differences and peculiarities, have effects similar to those of a trust contract, but do not always manage to meet the needs of the parties to the guarantee and security by not advancing this ductility. Thanks to this, a well-structured escrow agreement is suitable for implementing situations that would otherwise be difficult to apply. From an editorial point of view, it is essential that the contract is as complete and detailed as possible: in order to avoid any uncertainty, it should not, as a general rule, be too broad, otherwise there is a risk of doubts of interpretation and duration not too long, since it could also be configured as an instrument of fictitious subtraction of the goods by their separation.
to also circumvent anti-money laundering legislation. And not only that: the importance of stating in advance in the trust agreement the terms of the order, and in particular those that lead to its conclusion, plays a fundamental role in order to prevent this negotiation figure from being contaminated by the elements of arbitration or arbitration: the trustee, in order to stay within the limits of the above number, must actually engage in an activity that should be free of discretion (if it is not strictly technical). Therefore, in order to fulfill the mandate, it must not settle a dispute between the parties or, by integration, determine the elements of the contract to which the contract has access, but must protect the expectation of the party in whose interest it was agreed to obtain the assets, rights, capacities that constitute the object and reason for the determination. In order to remain within the limits of this number, the trustee or holder must remain a subject who does not carry out judicial activity or integrates the main agreement: it is therefore obvious that the material that drafted the trust contract (which will often be the same trustee) must resist the slight temptation to which it is often asked to make the outcome of the trust dependent on events, whose evaluation requires discretionary decisions. which distort the agreement if it is properly reconstituted as indicated above. . . .
