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SHOULD THE RULES GOVERNING FOUNDATIONS BE PLACED IN A CIVIL CODE?
By Professor Ulrich Drobnig Max Planck Institut
Hamburg, Germany

The question of whether legal provisions governi ng foundations (and also associations) should be
placed in a Civil Code, or in one or more separate instruments, is not only an issue of legislative
drafting. This question does not arise, of course, in those countries which do not have a Civil
Code; for example, England, Wales, Scotland, Ireland, Cyprus and Scandinavia. But for the
Continental countries with civil codes, this is sue is one that has led to divisive results.

The civil codes enacted in the 19 th century, for example in France (likewise in Belgium,
Luxembourg, Spain, and Austria), do not contain prov isions on foundations. The basis for this
phenomenon is ideological: after the French Re volution, the state was hostile against any
intermediary powers that might in terfere with the direct relationship between state and society.
The same was true for the civil codes in the Comm unist/Socialist states of Eastern Europe. In
both groups of countries (except Hungary), f oundations are regulated by special legislation
outside the civil codes.

In contrast, the civil codes enacted in the 20 th century recognized the need for civil society by
inserting rules on foundations (and associations) into the civil codes. They were usually placed at
the beginning of the codes, following the provisions on natural persons. The lead was taken by
the German Civil Code of 1900, followed by the Swiss Code of 1907, the Greek, the Italian and
the Portuguese Codes of 1946, 1942, and 1967, respectively, and finally, the Dutch Code (Book
Two on Legal Entities, 1976).

Today, civil society, which can be rendered by dev oting assets to a publicly useful purpose, is
becoming more widely recognized and publicly supp orted. The civil codes as the most basic
instruments containing the general legal rules fo r relations between citizens are therefore the
most suitable and appropriate frameworks for dealing with foundations (and associations).