Different Types of Trust from an Ownership Aspect

Abstract

The Anglo-Saxon legal institution of a trust is generally regarded as unique because of the simultaneous existence of a legal and equitable title. Legal systems based on Roman law recognize only the unity of ownership, which acts as the chief impediment to the introduction of trusts. Legislators in civil law and mixed jurisdiction countries discovered the relevant advantages of trusts in the economy and in the private sphere, therefore they tried to create similar institutions that could fulfil the same function. The aim of this study is to present a view and a comparative law analysis of the trust-like devices of civil law and mixed jurisdictions, with special emphasis on the regulation of trust property. The comparison will take into account characteristics such as ownership of the trust fund, asset partitioning, the nature of the parties involved in the legal relationship, and the possibility of tracing. The functionality of institutions in civil law countries is more or less adequate to serve the purposes of a trust, but several important details and relevant differences should be highlighted.

The Moroccan Waqf and the Common-Law Trust: A Comparative Study

“…The expansion of the use was due to the necessity of the payment of feudal charges that were imposed on the holders of legal titles to land (Smith, 1966). Thus, the emergence of the use was attributable to the structure of the feudal ownership system, which prohibited the alienation of properties (Sândor, 2016).…”

“…According to Sândor (2016), the use-based on the English feudal estate-was the medieval antecedent to the common law trust. The tenant of the land had the right to possess the land (seisin), and he enjoyed a certain degree of protection from his lord; as consideration, he was obliged to provide services to the lord.…”

“…The tenant of the land had the right to possess the land (seisin), and he enjoyed a certain degree of protection from his lord; as consideration, he was obliged to provide services to the lord. Thus, the King was considered legally the owner of the land, while the tenant-in-chief was given rights to enjoy property (Sândor, 2016).…”

“…Jeromos 3 argued that "use" originated from the French words os or oes. The word "use" has generally been observed in religious and church contexts (Sândor, 2016). This regard, the Supreme Court of Appeal in Land and Agricultural Bank of South Africa v. Parker and Others stated the following: "It may be said .…”

“…In the same vein, (Hansmann & Mattei 1998) it was pointed out that "when the trustee exchanged the trust property for other property, the beneficiary's interest and the trustee's duties attached to the new property received in the exchange." In other words, the trustee was engaged to manage the trust endowment separately from their own (Sândor, 2016). Sândor (2016) has described this legal relationship as "split ownership" because both the trustee and the beneficiary would have some kind of ownership right to the same property at the same time.…”