Trust and Patrimony

Abstract

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.

A developed understanding of the beneficiary’s interest in commercial trusts through a comparative study of Chinese law

“…As Professor Smith argues, '[t]his idea is not alien to the civil law, which also recognizes that while a personal obligation does not create a real right but only a claim against a particular debtor, nonetheless it is possible that there might be claims in delict against third parties who wrongfully interfere in the performance of an obligation'. 45 This article argues that the beneficiaries' right to supervise trust affairs and annul a trustees' wrongful disposal of trust property, both of which are beyond the narrow scope of personal claims, can be interpreted as the appurtenance and the preservation of the personal claims respectively. The reasons for this are outlined below.…”

“…58 As Professor Smith notes, '[t]he 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.' 59 Specifically, a beneficiary's proprietary rights under common law were recognized by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v. Islington LBC. 60 The beneficiary has a proprietary interest in the trust property, which is, in equity, enforceable against any subsequent holder of the property other than a purchaser for value of the legal interest without notice.…”

Fiduciary transfer of ownership: One or more ownerships?

“…Naime, u kontinentalnom pravu imovina jednog lica predstavlja skup svih njegovih prava i obaveza čija se vrednost može izraziti u novcu (Smith, 2008, p, 383). Pored toga, u kontinentalnopravnim sistemima jedno lice može imati samo jednu imovinu (Smith, 2008). Takav pojam imovine ne postoji u anglosaksonskom pravu (Smith, 2008).…”

“…Pored toga, u kontinentalnopravnim sistemima jedno lice može imati samo jednu imovinu (Smith, 2008). Takav pojam imovine ne postoji u anglosaksonskom pravu (Smith, 2008). Anglosaksonski se trast, kojem pomenute kontinentalno-pravne fiducije pokušavaju da pariraju, sastoji isključivo od prava, ne i od obaveza (Smith, 2008, p. 394).…”

The functional–formal impasse in (trust) property

“…The trust beneficiary's rights are rights in the rights that the trustee holds in the object. Those beneficiary's rights are the converse of the obligations owed by the trustee to the beneficiary, in respect of the trust property.’ (Smith, 2008, p. 392)Smith substantiates the claim that ‘the beneficiary's only rights are rights held in the rights of his trustee’ by observing ‘that if a third party wrongfully causes damage to the trust property, there is no claim by a beneficiary against the third party’ (2008, p. 391, emphasis in original), the broader implication being that ‘the trust beneficiary has no equivalent direct right to exclude others from the … trust asset’ (Penner, 2014, p. 476; McFarlane and Stevens, 2010, pp. 3–4).…”