Scottish Trusts in the Common Law

This chapter examines how the Scottish trust is — and is not — found in the common law. First, how it is not: the trust of the common law tradition cannot be understood according to the principles that underlie the trust of Scotland. But then, how it is: the common law does have an institution that corresponds almost exactly to the Scottish trust. Before analysing the ubiquitous presence of Scottish trusts in the common law, the chapter considers trust as it relates to the administration of the estate of the deceased, the position of estate beneficiaries, and trustees and personal representatives in the common law. It also discusses some recent developments in trusts in the common law world and concludes with an analysis of the implications of such developments for trust beneficiaries and non-contractual creditors.

Translating Part of France’s Legal Heritage: Aubry and Rau on the Patrimoine

This chapter considers one of the great texts of nineteenth-century French legal literature: an English translation of Cours de droit civil français, a scholarly description of patrimony in French law written by Charles Aubry and Frédéric-Charles Rau. The discussion is based on three assumptions about legal translation as a means of giving voice to some of the supposed Frenchness of French law. First, the text captures some of the substantive genius of French property law. Second, that part of the formal genius of French law — its style, its aesthetic — is also trapped in texts such as Aubry and Rau on the patrimony. Third, these formal and substantive messages can be drawn out of French and then cast — transposed, translated — into English.

Trust and Patrimony

This chapter examines whether the common law trust can be understood as a patrimony in the civilian sense. It begins with a discussion of Pierre Lepaulle's claim that the common law trust is a patrimony affected to a destination or purpose. It then considers the situation of creditors and beneficiaries in a common law trust before advancing the argument that, contrary to the position taken by Lepaulle, the common law trust is not a patrimony. It contends that only trustees have direct access to the trust assets; trust creditors, and even beneficiaries, do not. It also asserts that the essence of the common law trust lies not in any division of ownership of the trust property, but in the fact that the trust beneficiaries hold rights in the rights that the trustee holds as trust property. The chapter concludes by relating the trust institution to the idea of legal personality.

Dual Patrimony Dutch Style: The Magic Spell for Introducing the Trust in the Netherlands?

This chapter considers the possibility of conceptualising a Dutch trust using the dual patrimony theory — the concept where a person, natural or legal, holds two patrimonies that are distinct from each other. It begins with a discussion of the main obstacles in Dutch law for the introduction of a trust, including the indivisibility of ownership, statutory prohibition of fiduciary transfers, and paritas creditorum. It then examines how these obstacles have been partly overcome over the years and how the doctrine of separate patrimony could possibly lead to a definitive solution. It also looks at several instruments leading to a separate patrimony and concludes with an overview of some issues that could arise even if the trust were considered to be a separate patrimony, including the potential negative impact on trust creditors, the separation of trust assets from the trustee's personal assets, and the trustee's power to dispose of the trust assets.

Patrimony not Equity: The Trust in Scotland

This chapter examines the importance of patrimony as an organising principle of trust in the absence of equity. The law of property in Scotland and other mixed jurisdictions is always civilian; like civil law countries, they do not have a separate system of equity, or acknowledge the distinction between legal and beneficial ownership; and yet all mixed systems have the trust. In addition to the common law trust, there is the civil law trust. Of the civil law trusts, a special place may be claimed for the Scottish trust, the oldest such trust by far and one of the most widely used in practice. The chapter first considers trusts in relation to contracts and real rights before discussing the two patrimonies of a trustee: a private patrimony and a trust patrimony. It also assesses the impact of a trustee's death on the integrity of patrimony, along with the rights of trustees and trust beneficiaries.

Trust without Equity

This chapter examines an English peculiarity logically detachable from the trust: the distinction between the legal and the equitable estate. According to the Hague Convention on the Recognition of Trusts, ‘the trust, as developed in courts of equity in common law jurisdictions and adopted with some modifications in other jurisdictions, is a unique legal institution’. The unique nature of trust lies in the fact that it is founded on the division between law and equity and the consequent division of property rights into legal and equitable. The chapter first considers whether trust can be explained in terms of the law of obligations before discussing trust as agency and whether trust beneficiaries have rights in rem. It also analyses trust as patrimony, the relation between patrimony and personality, trusteeship as an office, and the Scots law on trust.

Square Peg, Round Hole? Patrimony and the Common Law Trust

This chapter examines the relation between the doctrine of patrimony and the common law trust. Patrimony derives from the notion of personality. The doctrine reached its full flowering with the French nineteenth-century work of Charles Aubry and Frédéric-Charles Rau. After discussing the difficulties that arise from the notion that patrimony has particular importance in relation to the rights of creditors and of heirs, the chapter considers the significance of patrimony to the question of succession. In particular, it analyses the transmission of economic personality to the heirs. It also describes various uses of patrimony in relation to trusts before revisiting the English case Jennings v Mather. Finally, it looks at the implications of a trustee's death for patrimony, the Scottish law on trusts, dealings with trust property, and why a patrimonial approach to trusts should be adopted.

Trusting Patrimonies

This chapter discusses the story of trust as patrimony in Quebec, with particular emphasis on the symbolic and normative power of patrimony. After a brief overview of the story of the trust in Quebec, the chapter examines why patrimony, specifically the patrimony by appropriation, was chosen to recast the trust in the new code. It then explores what it means to call a trust a patrimony and especially patrimony by appropriation. It also considers patrimony as property, as personality, and as legal universalities, and asks whether it is possible for property and obligations to be bereft of personality in the civil law. Finally, it looks at two different visions of purpose patrimonies and two different visions of the trust as understood in the civil law.

Lepaulle Appropriated

This chapter discusses the English translation of the first chapter of Pierre Lepaulle's 1932 book Traité théorique et pratique des trusts en droit interne, en droit fiscal et en droit international (A Theoretical and Practical Treatise on Trusts in Municipal Law, Tax Law, and International Law). The book articulates Lepaulle's vision of the common law trust as an affected patrimony. His goal was to explain the common law trust to a civilian audience, using the vocabulary and the conceptual tools of the civil law in its French manifestation. The chapter first provides a background on the translation project, which involved appropriating Lepaulle, and the author before presenting the translation. It emphasises the significance of Lepaulle's work to the notions of trust and patrimony as well as to civil law in French and to private law more generally, including the common law.

The Trust as Patrimony: An Introduction

This chapter introduces the reader to some of the complex issues surrounding the relation between trust and patrimony from the perspective of comparative private law. It considers fundamental questions that underscore the dilemmas of comparative law; for example, why we need to search for, and pin down, a common denominator for the broad spectrum of trusts and trust-like institutions, or whether supra-national and system-neutral legal institutions can exist? In particular, the views of French jurist Raymond Saleilles are discussed. The chapter also considers the problem of defining trust from a comparative private law angle and especially the debate over whether trust belongs to property, obligations, persons or somewhere else. Finally, it examines the nature of the rights of trust beneficiaries and the private law concept of patrimony in the civilian tradition.