Some reflections on the nature of foundations as legal persons

Abstract

The well-known phenomenon of the proliferation of foundations in our legal field leads to an important reflection on their legal nature that is directly linked to the social mistrust that the institution has generated.

The constitutional conception of this type of legal persons (art. 34.1 CE) entails the existence of an essential characterizing core that must be respected both by the legislator himself (art. 53.1 CE) and by the actors involved in the founding sector.

However, in practice there has been an instrumentalization of foundations motivated either by the action of the legislator, which has led to an excessive use of the founding legal form through the creation of specific types of foundations that do not correspond to said nucleus essential characterizer, or as a consequence of the denaturing of the aims of general interest that these entities must satisfy for certain types of foundations.

On this base, it’s intended to carry out some reflections that highlight such instrumentalization that has occurred of the foundation-type legal person and the consequent confusion regarding its nature from the perspective of its basic configuring elements.