scholarly journals Trust and Patrimony

2014 ◽  
Vol 38 (2) ◽  
pp. 379-403 ◽  
Author(s):  
Lionel D. Smith
Keyword(s):  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Legal Person ◽  
Fundamental Change ◽  
Legal Institution ◽  
Personal Rights ◽  
The Common ◽  
Trust Property

The French jurist Pierre Lepaulle argued that the common law trust could be best understood, in civilian terms, as a patrimony by appropriation. This argument has been influential in some civilian receptions of the trust. In fact, Lepaulle misunderstood the nature of the common law trust, which is founded on the obligations owed by the trustee in relation to the trust property. The rights of beneficiaries in the common law trust are neither purely personal rights against the trustee, nor are they real rights in the trust property, but rather they are rights over the rights which the trustee holds as trust property; they have a proprietary character since they persist against many third party transferees of the trust property. This analysis of the common law trust leads to the conclusion that it would be a fundamental change to turn the common law trust into a legal person. More generally, it is argued that any legal system that characterizes the trust as a legal person will find that it has ceased to understand the trust as a fundamental legal institution.

Third Party Beneficiary: A Comparative Analysis

1976 ◽  
Vol 11 (3) ◽  
pp. 315-338 ◽  
Author(s):  
Gabriela Shalev
Keyword(s):  
Comparative Analysis ◽  
Legal System ◽  
Common Law ◽  
Third Party ◽  
Critical Examination ◽  
Legal Research ◽  
General Part ◽  
The Common ◽  
Comparative Survey ◽  
The Right

Chapter 4 of the new Israeli Contracts (General Part) Law, 1973, introduces the concept of a contract in favour of a third party, while granting express recognition to the right of a third party beneficiary. Even those, (including the author) who maintain, that the right of a third party beneficiary could and should be derived, even before the commencement of the new Law, from the general principles and premises of the old Israeli law of contract, cannot fail to see in the above-mentioned chapter an important innovation in the Israeli legal system.This paper is a comparative analysis of the institution of third party beneficiary. The analysis will consist of a presentation and critical examination of the central concepts and doctrines involved in the institution under discussion, and it will be combined with a comparative survey of the arrangements adopted in various legal systems. The choice of this approach stems from the particular circumstances of the new legislation.While in most countries, comparative legal research is a luxury, in Israel it is a necessity. The new legislation in private law is inspired to a great extent by Continental codifications. As far as the law of contract is concerned, Israel is now in the process of becoming a “mixed jurisdiction”: departing from the common law tradition and technique, and heading towards an independent body of law, derived from various sources, mainly Continental in both substance and form.

scholarly journals From Norms to Facts: The Realization of Rights in Common and Civil Private Law

2011 ◽  
Vol 56 (1) ◽  
pp. 77-114 ◽  
Author(s):  
Helge Dedek
Keyword(s):  
Legal System ◽  
Deep Structure ◽  
Common Law ◽  
Social Reality ◽  
Judicial Decision Making ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Common ◽  
Legal Concepts ◽  
The Ideal

Every legal system that ties judicial decision making to a body of preconceived norms has to face the tension between the normative formulation of the ideal and its approximation in social reality. In the parlance of the common law, it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. In the common law world—particularly in the United Kingdom and the Commonwealth—a lively discourse has developed around the question of how rights relate to remedies. To the civilian legal scholar—used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, action, and execution—the concept of remedy remains a mystery. The lack of “remedy” in the vocabulary of the civil law is more than just a matter of attaching different labels to functional equivalents, it is the expression of a different way of thinking about law. Only if a legal system is capable of satisfactorily transposing the abstract discourse of the law into social reality does the legal machinery fulfill its purpose: due to the pivotal importance of this translational process, the way it is cast in legal concepts thus allows for an insight into the deep structure of a legal culture, and, convergence notwithstanding, the remaining epistemological differences between the legal traditions of the West. A mixed jurisdiction must reflect upon these differences in order to understand its own condition and to define its future course.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

British Virgin Islands

2020 ◽  
Author(s):  
Arabella di Iorio
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Common Law ◽  
Virgin Islands ◽  
British Virgin Islands ◽  
Law System ◽  
The Common ◽  
Eastern Caribbean ◽  
Common Law System ◽  
Trust Law

The legal system of the British Virgin Islands is a common law system based on the English model, comprising statute law and binding case precedents. The principles of English common law and equity apply in the BVI (subject to modification by BVI statutes) pursuant to the Common Law (Declaration of Application) Act (Cap 13) and the Eastern Caribbean Supreme Court (Virgin Islands) Act (Cap 80) respectively. The general principles of trust law are based on English law.

7. Privity of contract and third party rights

2021 ◽  
pp. 307-358
Author(s):  
Robert Merkin ◽  
Séverine Saintier
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Subject ◽  
The Common ◽  
Contractual Obligations ◽  
Privity Of Contract

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.

3. Special duty problems: omissions and acts of third parties

2019 ◽  
pp. 49-59
Author(s):  
Kirsty Horsey ◽  
Erika Rackley
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Duty Of Care ◽  
The Third ◽  
The Common ◽  
Relationship Of ◽  
Special Duty

This chapter discusses the problem of when a duty of care arises in respect of negligent omissions, or for the actions of a third party. The common law takes the view that it would be too great a burden to impose liability upon a person for a mere omission, or for the actions of others. Despite this, duties can in fact be imposed in various ways, all of which focus on the reliance of the claimant upon the defendant. This can come about either by the previous conduct of the defendant, which induces reliance by the claimant that the defendant will continue to act in that way, or by reliance which comes out of a relationship of dependence between the parties. As regards third parties, a duty may arise where the defendant has control over or responsibility for the third party’s actions.

1. Foundations

2020 ◽  
pp. 3-32
Author(s):  
Gary Watt
Keyword(s):  
Common Law ◽  
Legal Rights ◽  
History Of ◽  
The Common ◽  
Special Concern ◽  
Trust Property ◽  
Court Of Chancery ◽  
Conceptual Foundations ◽  
The Relationship ◽  
Historical Origins

This chapter focuses on the historical and conceptual foundations of trusts and equity, first examining the history of the relationship between law and equity, including the historical origins of the trust. It then explains the idea of equity and how it is intertwined with the common law, and compares the trust with concepts such as gifts and contracts. The chapter shows that the trust arose in response to equity’s special concern to ensure that legal rights are not used in bad conscience, but later developed into a sophisticated institution governed by established rules. It looks at the reform of the Court of Chancery and considers trust property, equitable rights under a trust, separation of legal and equitable title, and the paradox of property and obligation.

The Common Law in Lesotho

1969 ◽  
Vol 13 (3) ◽  
pp. 127-144
Author(s):  
Sebastian Poulter
Keyword(s):  
South Africa ◽  
East Africa ◽  
Southern Africa ◽  
Legal System ◽  
Common Law ◽  
The Subject ◽  
The Common ◽  
English Law ◽  
The Republic

Whereas the reception and operation of English law in West and East Africa have been the subject of much study over the last few years, the introduction and application of Roman-Dutch law in Southern Africa (apart from South Africa itself) have received scant treatment.1 This article deals only with the position in Lesotho and attempts to show the extent to which Lesotho's legal system is tied to that of the Republic of South Africa, and thus strengthens the geographical and economic bonds which link the two countries.

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