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2
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12444308186
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Despite this, valuable attempts to identify “trust-like” devices in non-trust legal systems have been made: see for instance
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Despite this, valuable attempts to identify “trust-like” devices in non-trust legal systems have been made: see for instance Hein Kötz, Trust und Treuhand (1963)
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(1963)
Trust und Treuhand
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Kötz, H.1
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5
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84921554417
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Both non-profit quasi-corporations, such as the Inns of Court, and quasi-companies, with the shareholders being the beneficiaries and the directors the trustees. For a classic study see 2nd edn
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Both non-profit quasi-corporations, such as the Inns of Court, and quasi-companies, with the shareholders being the beneficiaries and the directors the trustees. For a classic study see John H. Sears, Trust Estates as Business Companies (2nd edn, 1921).
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(1921)
Trust Estates as Business Companies
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Sears, J.H.1
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6
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79959593595
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“Si l'on demande à quoi sert le trust, on peutpresque répondre. ‘d tout.’ “ (”What is the trust used for? Almost everything.”
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“Si l'on demande à quoi sert le trust, on peutpresque répondre. ‘d tout.’ “ (”What is the trust used for? Almost everything.” Pierre Lepaulle, Traué Theorique et Pratique des Trusts (1932) p.l2)
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(1932)
Traué Theorique et Pratique des Trusts
, pp. l2
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Lepaulle, P.1
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7
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0003724704
-
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They are not even confined to national laws: they extend to public international law. See for instance
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They are not even confined to national laws: they extend to public international law. See for instance Catherine Redgwell, Intergenerational Trusts and Environmental Protection (1999).
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(1999)
Intergenerational Trusts and Environmental Protection
-
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Redgwell, C.1
-
8
-
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85023068572
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“Though the English do not lay exclusive claim to having discovered God, they do claim to have invented the trust with two natures in one.” chap.2, para.262
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“Though the English do not lay exclusive claim to having discovered God, they do claim to have invented the trust with two natures in one.” (T. B. Smith), International Encyclopaedia of Comparative Law Vol.VI, chap.2, para.262.
-
International Encyclopaedia of Comparative Law
, vol.VI
-
-
Smith, T.B.1
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9
-
-
85022998320
-
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(Preamble.) As one usually finds in texts where two or more languages are authentic, there arc significant differences between the authentic versions. The French text reads
-
(Preamble.) As one usually finds in texts where two or more languages are authentic, there arc significant differences between the authentic versions. The French text reads: “Le trust est une institution caracttristiquc crte par tes jurisdictions de I'equitt dans les pays de common law.”
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“Le trust est une institution caracttristiquc crte par tes jurisdictions de I'equitt dans les pays de common law.”
-
-
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10
-
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85023042786
-
-
at
-
Abdul Hameed Silti Kadija v. De Saram [1946] 208 (Ceylon) at 217.
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(1946)
Ceylon
, vol.208
, pp. 217
-
-
-
11
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44649098880
-
-
Privy Council, quoting with approval 3rd edn
-
(Privy Council, quoting with approval R. W. Lee, Introduction to Roman-Dutch Law (3rd edn, 1931), p.372.)
-
(1931)
Introduction to Roman-Dutch Law
, pp. 372
-
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Lee, R.W.1
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13
-
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85023092539
-
-
at at Quoted This remark is so undiplomatic that it is better left untranslated. It is also less than fair, but passages such as that quoted in the text enable one to understand why Meijers descended to invective
-
Quoted H. F. W. D. Fischer at 1957, Tydskrif vir hedendaagse Romeins-Hollandse Reg.25 at 35/36. This remark is so undiplomatic that it is better left untranslated. It is also less than fair, but passages such as that quoted in the text enable one to understand why Meijers descended to invective.
-
(1957)
Tydskrif vir hedendaagse Romeins-Hollandse Reg.25
, vol.35-36
-
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Fischer, H.F.W.D.1
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14
-
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84913546999
-
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at 1264
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(1936/1937) 50 Harvard Law Review 1249, at 1264.
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(1936)
Harvard Law Review
, vol.50
, pp. 1249
-
-
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15
-
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77957181487
-
Things as Things and Things as Wealth
-
at
-
“Things as Things and Things as Wealth” (1994) 14 Oxford Journal of Legal Studies 806, at 89.
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(1994)
Oxford Journal of Legal Studies
, vol.14
, Issue.806
, pp. 89
-
-
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16
-
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85023003465
-
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And cf. the same author's remark that “while the separation [between law and equity] may be the historical reason for the invention of the trust concept, it does not seem an adequate analytical reason, for it fails to explain the Scottish trust.” (“Equity as Alibi” in at
-
And cf. the same author's remark that “while the separation [between law and equity] may be the historical reason for the invention of the trust concept, it does not seem an adequate analytical reason, for it fails to explain the Scottish trust.” (“Equity as Alibi” in Stephen Goldstein (Ed.), Equity and Contemporary Legal Developments (1992), at p.36.
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(1992)
Equity and Contemporary Legal Developments
, pp. 36
-
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Goldstein, S.1
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17
-
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0000294374
-
The Contractarian Basis of the Law of Trusts
-
Cf.
-
Cf. J. H. Langbein, “The Contractarian Basis of the Law of Trusts” [1995] 105 Yale L.J. 625.
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(1995)
Yale L.J
, vol.105
, pp. 625
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Langbein, J.H.1
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18
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85023038959
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The Verwaltungstreuhand of German law corresponds to this form of fiducia. For fiducia in general in Roman law see
-
The Verwaltungstreuhand of German law corresponds to this form of fiducia. For fiducia in general in Roman law see Inst Gaii 2,60.
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Inst Gaii
, vol.2
, pp. 60
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-
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19
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85012497426
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Uses Trusts and the Paths to Privity
-
England has recently made further inroads into privity by the Contracts (Rights of Third Parties) Act 1999. For privity and trusts see
-
England has recently made further inroads into privity by the Contracts (Rights of Third Parties) Act 1999. For privity and trusts see N. G. Jones, “Uses Trusts and the Paths to Privity” (1997) 56 C.L.J. 175.
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(1997)
C.L.J
, vol.56
, pp. 175
-
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Jones, N.G.1
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20
-
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84881744306
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Obstacles to the Reception of the Trust? The Examples of South Africa and Scotland
-
Tony Honoré has written that “the conclusion must be that civil law systems are capable of protecting the trust beneficiary by the doctrine of notice to the same extent as does English law by its recourse to equitable interests in property.” in A. M. Rabello (Ed.)
-
Tony Honoré has written that “the conclusion must be that civil law systems are capable of protecting the trust beneficiary by the doctrine of notice to the same extent as does English law by its recourse to equitable interests in property.” (“Obstacles to the Reception of the Trust? The Examples of South Africa and Scotland” in A. M. Rabello (Ed.), Aequitas and Equity (1997).)
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(1997)
Aequitas and Equity
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21
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71949094631
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The Rights of the Cestui Que Trust
-
A point well made within the Anglo-American tradition by
-
A point well made within the Anglo-American tradition by Harlan Stone: “The Rights of the Cestui Que Trust” (1917) 17 Columbia Law Review 467.
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(1917)
Columbia Law Review
, vol.17
, pp. 467
-
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Stone, H.1
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22
-
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85023041100
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Dig. 18 “A tutor cannot buy a thing belonging to his ward; this rule extends to other persons with similar responsibilities, that is curators, procurators and those who conduct another's affairs.” (Translation per Alan Watson's edition.
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Tutor rem pupilli emere non potest: idemque porrigendum est ad similia; id est ad curatores procurators et qui negotia atiena gerunt. (Dig. 18, 1,34, 7. “A tutor cannot buy a thing belonging to his ward; this rule extends to other persons with similar responsibilities, that is curators, procurators and those who conduct another's affairs.” (Translation per Alan Watson's edition.)
-
Tutor rem pupilli emere non potest: idemque porrigendum est ad similia; id est ad curatores procurators et qui negotia atiena gerunt
, vol.1
, Issue.34
, pp. 7
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23
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85023061512
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This conceptualisation of the trust was common in Scots law in the 17th and 18th centuries. Trust was often described as a combination of deposition and mandatum, with the deposition being a deposit of ownership rather than possession. See further Lord Stair
-
This conceptualisation of the trust was common in Scots law in the 17th and 18th centuries. Trust was often described as a combination of deposition and mandatum, with the deposition being a deposit of ownership rather than possession. See further James Dalrymple (Lord Stair), Institutions of the Law of Scotland (1681) 1,13,7 and 4,63
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(1681)
Institutions of the Law of Scotland
, vol.1
, Issue.13
-
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Dalrymple, J.1
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26
-
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85022989394
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However, it does not seem to be used much in practice, either in the Netherlands or in Southern Africa. In Lord Watson opined that in the Scottish trust the beneficiaries are the owners and the trustee has no real right—in the effect the bewind concept. But this was a maverick view, shared by no one before or since
-
However, it does not seem to be used much in practice, either in the Netherlands or in Southern Africa. In Heritable Reversionary Co. v. Millar (1892) 19 R.H.L. 43 Lord Watson opined that in the Scottish trust the beneficiaries are the owners and the trustee has no real right—in the effect the bewind concept. But this was a maverick view, shared by no one before or since.
-
(1892)
R.H.L.
, vol.19
, pp. 43
-
-
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27
-
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85023148650
-
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Something like the bewind exists in the Ermdchtigungslreuhand in Austrian law. (See generally
-
Something like the bewind exists in the Ermdchtigungslreuhand in Austrian law. (See generally Peter Apathy (Ed.), Die Treuhandschaft (1995).)
-
(1995)
Die Treuhandschaft
-
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Apathy, P.1
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28
-
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85023025888
-
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at Interestingly, South African legislation classifies the bewind as a sort of trust: see the Trust Property Control Act 1988. The South African view is that what is important is not so much ownership as control. (See also As against this, one may argue that if control, rather than ownership, is the test, then company directors would be “trustees.” But company directors, though occasionally called trustees, are fiduciaries but not trustees
-
Interestingly, South African legislation classifies the bewind as a sort of trust: see the Trust Property Control Act 1988. The South African view is that what is important is not so much ownership as control. (See also H. R. Hahlo at (1961) 78 South African Law Journal 195.) As against this, one may argue that if control, rather than ownership, is the test, then company directors would be “trustees.” But company directors, though occasionally called trustees, are fiduciaries but not trustees.
-
(1961)
South African Law Journal
, vol.78
, pp. 195
-
-
Hahlo, H.R.1
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30
-
-
85023042786
-
-
at
-
Abdul Hameed Sitti Kadija v. De Saram [1946] 208 (Ceylon) at 217.
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(1946)
Ceylon
, vol.208
, pp. 217
-
-
-
31
-
-
44649098880
-
-
Privy Council, quoting with approval 3rd edn
-
(Privy Council, quoting with approval R. W. Lee, Introduction to Roman-Dutch Law (3rd edn, 1931), p 372.)
-
(1931)
Introduction to Roman-Dutch Law
, pp. 372
-
-
Lee, R.W.1
-
32
-
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84913546999
-
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at 1264
-
(1936/1937) 50 Harvard Law Review 1249, at 1264.
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(1936)
Harvard Law Review
, vol.50
, pp. 1249
-
-
-
34
-
-
26344443711
-
Why no Trusts in the Civil Law?
-
at
-
V. Bolgar, “Why no Trusts in the Civil Law?” (1953) 2 American Journal of Comparative Law 204, at 210.
-
(1953)
American Journal of Comparative Law
, vol.2
, Issue.204
, pp. 210
-
-
Bolgar, V.1
-
35
-
-
85023004824
-
-
Beneficial rights arc personal rights in English law, it is true, but the key point is that they are also proprietary. Some scholars have agonised over this. Maitland: “If a foreign friend asked me to tell him in one word whether the right of the English Destindr (the person for whom property is held in trust) is dinglich or obligatorisch, I should be inclined to say: ‘No, I cannot do that. If 1 said dinglich, that would be untrue. If I said obligatorisch, I should suggest what is false. In the ultimate analysis the right may be obligatorisch, but for many practical purposes of great importance it has been treated as though it were dinglich, and indeed people habitually speak and think of it as a kind of Eigenthum.” at
-
Beneficial rights arc personal rights in English law, it is true, but the key point is that they are also proprietary. Some scholars have agonised over this. Maitland: “If a foreign friend asked me to tell him in one word whether the right of the English Destindr (the person for whom property is held in trust) is dinglich or obligatorisch, I should be inclined to say: ‘No, I cannot do that. If 1 said dinglich, that would be untrue. If I said obligatorisch, I should suggest what is false. In the ultimate analysis the right may be obligatorisch, but for many practical purposes of great importance it has been treated as though it were dinglich, and indeed people habitually speak and think of it as a kind of Eigenthum.” (H. A. L. Fisher (Ed.), Collected Papers of Frederick William Maitland (1911) Vol.111, at p.326.
-
(1911)
Collected Papers of Frederick William Maitland
, vol.111
, pp. 326
-
-
Fisher, H.A.L.1
-
36
-
-
85023018517
-
-
chap.9 For Maitland's thoughts on how, historically, the beneficial interest evolved from a personal right into a quasi-real right, sec his of the edition). But Maitland's views remain (that beneficial rights are not truly real) a minority one
-
For Maitland's thoughts on how, historically, the beneficial interest evolved from a personal right into a quasi-real right, sec his Equity chap.9 (pp.112–114 of the 1949 edition). But Maitland's views remain (that beneficial rights are not truly real) a minority one.
-
(1949)
Equity
-
-
-
38
-
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85022990610
-
-
The fact that, even within the conceptual structure of the common law, beneficiaries may have not rights in rem, is a point stressed by
-
The fact that, even within the conceptual structure of the common law, beneficiaries may have not rights in rem, is a point stressed by Maurizio Lupoi: sec his Inirodutione al Trust 1994 and Trusts (1997).
-
(1997)
sec his Inirodutione al Trust 1994 and Trusts
-
-
Lupoi, M.1
-
40
-
-
85023083553
-
-
[1994] E.C.R. 1–1717 (Court of Justice Case No.C-294/92).
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(1994)
E.C.R. 1–1717
-
-
-
41
-
-
53949083018
-
-
“It is almost impossible to convey to continental lawyers the exact sense in which an English lawyer uses the terms in rem and in personam.” That is perceptive. One might add that it is almost impossible to convey to Anglo-American lawyers the exact sense in which a civilian lawyer uses the terms “real” and “personal.”
-
“It is almost impossible to convey to continental lawyers the exact sense in which an English lawyer uses the terms in rem and in personam.” H. C. Gutteridge, Comparative Law (1946) p.123. That is perceptive. One might add that it is almost impossible to convey to Anglo-American lawyers the exact sense in which a civilian lawyer uses the terms “real” and “personal.”
-
(1946)
Comparative Law
, pp. 123
-
-
Gutteridge, H.C.1
-
42
-
-
79960285398
-
-
“It has often been considered in civil law countries that ‘each person has a patrimony, each person has only one patrimony.’ This construction is essentially due to the reading by some French authors of some provisions of the French Civil Code.” Michel Grimaldi and Francois Barriere in 2nd edn at
-
“It has often been considered in civil law countries that ‘each person has a patrimony, each person has only one patrimony.’ This construction is essentially due to the reading by some French authors of some provisions of the French Civil Code.” Michel Grimaldi and Francois Barriere in Arthur Hartkamp (Ed.), Towards a European Civil Code (2nd edn, 1998), at p.578.
-
(1998)
Towards a European Civil Code
, pp. 578
-
-
Hartkamp, A.1
-
43
-
-
84922955911
-
-
at Herbots has written that “English law has … no theory either of estate or of personality.” (“Het Engels rechl kent… geen theorie van het vermogen, noch een theorie van de rechtspersoon”) That goes too far, though one can see why, from a continental standpoint, Herbots was tempted to say it
-
Herbots has written that “English law has … no theory either of estate or of personality.” (“Het Engels rechl kent… geen theorie van het vermogen, noch een theorie van de rechtspersoon”) J. H. Herbots (Ed.), Le Trust et la Fiducie (1997), at p.7. That goes too far, though one can see why, from a continental standpoint, Herbots was tempted to say it.
-
(1997)
Le Trust et la Fiducie
, pp. 7
-
-
Herbots, J.H.1
-
44
-
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85023137620
-
Third Way?
-
There is not much discussion of the concepts of patrimony and special patrimony in the English language. On this lack see in J. Basedow, K. J. Hopt & H. Kötz (Eds)
-
There is not much discussion of the concepts of patrimony and special patrimony in the English language. On this lack see Ansay, “Third Way?” in J. Basedow, K. J. Hopt & H. Kötz (Eds), Festschrift fUr Utrich Drobnig (1998).
-
(1998)
Festschrift fUr Utrich Drobnig
-
-
Ansay1
-
46
-
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85022993170
-
-
The point was developed by the French comparatist Pierre Lepaullc in his This is one of the seminal treatments of the subject. One area where Lcpaullc's thought was influential is Latin America
-
The point was developed by the French comparatist Pierre Lepaullc in his Traiti Thtorique el Praaique des Trusts (1932). This is one of the seminal treatments of the subject. One area where Lcpaullc's thought was influential is Latin America.
-
(1932)
Traiti Thtorique el Praaique des Trusts
-
-
-
47
-
-
85023133072
-
-
It was eventually published in a Spanish version in Mexico
-
(It was eventually published in a Spanish version in Mexico: Tratado teorico y pratico de los trusts (1975).)
-
(1975)
Tratado teorico y pratico de los trusts
-
-
-
48
-
-
84921611316
-
The Strange Destiny of Trusts
-
For Lepaulle's thoughts near the end of his life see in Roscoc Pound (Ed.)
-
For Lepaulle's thoughts near the end of his life see “The Strange Destiny of Trusts” in Roscoc Pound (Ed.), Perspectives of Law: Essays for Austin Wakeman Scott (1964).
-
(1964)
Perspectives of Law: Essays for Austin Wakeman Scott
-
-
-
49
-
-
85023070594
-
The Historical Origins of the Trust
-
To what extent the civilian concepts go back to Roman law itself, and to what extent they are post-Roman developments, is open to debate. H. Patrick Glenn concludes that “the trust … is part of a pan-European tradition and was developed in opposition to another pan-European tradition, that of Roman law.” in A. M Rabello (Ed.) Glenn's essay is of value but the second part of the sentence quoted goes too far
-
To what extent the civilian concepts go back to Roman law itself, and to what extent they are post-Roman developments, is open to debate. H. Patrick Glenn concludes that “the trust … is part of a pan-European tradition and was developed in opposition to another pan-European tradition, that of Roman law.” (“The Historical Origins of the Trust” in A. M Rabello (Ed.), Aequitasand Equity (1997).) Glenn's essay is of value but the second part of the sentence quoted goes too far.
-
(1997)
Aequitasand Equity
-
-
-
50
-
-
85023151057
-
-
Joint ownership may be compared with the Gesamthandcigentum as opposed to the
-
Joint ownership may be compared with the Gesamthandcigentum as opposed to the Miteigentum of German law.
-
Miteigentum of German law
-
-
-
51
-
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84860429727
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The New Trust: Obligations without Rights?
-
Are they founded on promise or on contract? Or perhaps they are another form of voluntary obligation? I would analyse the trust obligation as a special form of promise. But the question is probably of limited importance. A more interesting question is whether beneficiaries need to have any rights at all. It may be that benefit can be separated from enforceability, and in fact this is one of the current issues in international trust law. For perceptive discussion sec in A. J. Oakley (Ed.)
-
Are they founded on promise or on contract? Or perhaps they are another form of voluntary obligation? I would analyse the trust obligation as a special form of promise. But the question is probably of limited importance. A more interesting question is whether beneficiaries need to have any rights at all. It may be that benefit can be separated from enforceability, and in fact this is one of the current issues in international trust law. For perceptive discussion sec Paul Matthews, “The New Trust: Obligations without Rights?” in A. J. Oakley (Ed.), Trends in Contemporary Trust Law (1996).
-
(1996)
Trends in Contemporary Trust Law
-
-
Matthews, P.1
-
52
-
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85023032040
-
-
See also A trust of this sort is especially problematic in legal systems which recognise the division of ownership, for it means that the trustees have legal ownership (and nothing more) but the equitable ownership is in a void. Actually this is yet another argument to show that beneficial rights cannot be real
-
See also Paul Baxendalc-Walker Purpose Trusts (1999). A trust of this sort is especially problematic in legal systems which recognise the division of ownership, for it means that the trustees have legal ownership (and nothing more) but the equitable ownership is in a void. Actually this is yet another argument to show that beneficial rights cannot be real.
-
(1999)
Paul Baxendalc-Walker Purpose Trusts
-
-
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53
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85023044663
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Lcpaulle did not agree. For him the rights of the beneficiaries, though personal, were enforceable against the trust rather than against the trustee. Likewise, the duties of the trustees were owed, not to the beneficiaries, but to the trust itself This view of matters virtually turns the trust into a juristic person. Thus shareholders have rights against the company, not against the directors, and directors owe their duties to the company, not to the shareholders
-
Lcpaulle did not agree. For him the rights of the beneficiaries, though personal, were enforceable against the trust rather than against the trustee. Likewise, the duties of the trustees were owed, not to the beneficiaries, but to the trust itself. (Traité Theorique et Pratique da Trusts (1932), pp.42–44.) This view of matters virtually turns the trust into a juristic person. Thus shareholders have rights against the company, not against the directors, and directors owe their duties to the company, not to the shareholders.
-
(1932)
Traité Theorique et Pratique da Trusts
, pp. 42-44
-
-
-
54
-
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84881808485
-
National Report for Germany
-
in D. J. Hayton, S. C. J. J. Kortmann & H. L. E. Verhagcn at The German Unmittelbarkeitsprinzip, according to which assets held in Treuhand are protected from creditors of the Treuhdnder only if they are the original “trust” assets—i.e. the exclusion of real subrogation—strikes me as lacking a stateable basis in legal doctrine. If there is a special patrimony then there must be real subrogation. If there is no special patrimony, the immunity to creditors is inexplicable (unless the right of the beneficiary is real). Kötz admits that the insolvency effect of the Treuhand is “incompatible with the theory that the beneficiaries' interest in the Treuhand res is a mere right in personam.” The term “quasidinglich” which is sometimes encountered in the German literature merely masks the problem. The current German law lacks conceptual coherence. It may be added that KOtz has taken the view that the refusal of the German courts to allow real subrogation in Treuhand does not reflect any basic principle of German law
-
The German Unmittelbarkeitsprinzip, according to which assets held in Treuhand are protected from creditors of the Treuhdnder only if they are the original “trust” assets—i.e. the exclusion of real subrogation—strikes me as lacking a stateable basis in legal doctrine. If there is a special patrimony then there must be real subrogation. If there is no special patrimony, the immunity to creditors is inexplicable (unless the right of the beneficiary is real). Kötz admits that the insolvency effect of the Treuhand is “incompatible with the theory that the beneficiaries' interest in the Treuhand res is a mere right in personam.”(Hein Kötz, “National Report for Germany” in D. J. Hayton, S. C. J. J. Kortmann & H. L. E. Verhagcn, Principles of European Trust Law (1999) 85, at 94.) The term “quasidinglich” which is sometimes encountered in the German literature merely masks the problem. The current German law lacks conceptual coherence. It may be added that KOtz has taken the view that the refusal of the German courts to allow real subrogation in Treuhand does not reflect any basic principle of German law.
-
(1999)
Principles of European Trust Law
, vol.85
, pp. 94
-
-
Kötz, H.1
-
55
-
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84973456445
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Die 15 Haager Konferenz unddas Kollisionsrecht des Trust
-
See at
-
(See H. KOtz, “Die 15 Haager Konferenz unddas Kollisionsrecht des Trust” (1986) 50 Rabels Zeitschrift 562, at 579/580.)
-
(1986)
Rabels Zeitschrift
, vol.50
, Issue.562
-
-
KOtz, H.1
-
56
-
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85023137419
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Bain (1901) 9 S.L.T. 14
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(1901)
S.L.T
, vol.9
, pp. 14
-
-
Bain1
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58
-
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85023124014
-
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Magnum Financial Holdings (Ply) Ltd v. Summerly 1984 1 S.A. 160.
-
(1984)
S.A
, vol.1
, pp. 160
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59
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-
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Das Treuhandvcrmögen [ist] als Fremdvermögen zu betrachicn und es haben daher die Gläubigcr da Treuhänders hierauf keinen Anspruch.” Personen- und Cesellschaftrecht Art.915. (Text from
-
Das Treuhandvcrmögen [ist] als Fremdvermögen zu betrachicn und es haben daher die Gläubigcr da Treuhänders hierauf keinen Anspruch.” Personen- und Cesellschaftrecht Art.915. (Text from M. Lupoi, Trust Laws of the World (2000) Vol.11 p.1 159.)
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(2000)
Trust Laws of the World
, vol.11
-
-
Lupoi, M.1
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60
-
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84881744306
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Obstacles to the Reception of Trust Law? The Examples of South Africa and Scotland
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in A. M. Rabello at
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“Obstacles to the Reception of Trust Law? The Examples of South Africa and Scotland” in A. M. Rabello, Aequilas and Equity: Equity in Civil Law and Mixed Jurisdictions (1997) 793, at 812.
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(1997)
Aequilas and Equity: Equity in Civil Law and Mixed Jurisdictions
, vol.793
, pp. 812
-
-
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64
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85023050419
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Universitas alia rerum at, ut grex, peculium, hereditas; alia hominum, veluti collegium licitum, municipium, civitas, vicus, pagus
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(Liber III, Titulus IV, I. One kind of universitas is of things, such as a herd or a peculium or a hereditas. The other kind is of persons, such as an authorised guild, a municipality, a city, a village or a canton
-
“Universitas alia rerum at, ut grex, peculium, hereditas; alia hominum, veluti collegium licitum, municipium, civitas, vicus, pagus.” Johannes Voet, Commentarius ad Pandectas. (Liber III, Titulus IV, I. One kind of universitas is of things, such as a herd or a peculium or a hereditas. The other kind is of persons, such as an authorised guild, a municipality, a city, a village or a canton.)
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Johannes Voet, Commentarius ad Pandectas
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-
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65
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84956458393
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L'Histoire des Fondations
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In Latin, French and German: fundatio, fondation, Stiftung. To what extent this conceptualisation was due to Savigny, and to what extent it is medieval, I am unqualified to discuss. On this see the work of Feenstra, such as
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In Latin, French and German: fundatio, fondation, Stiftung. To what extent this conceptualisation was due to Savigny, and to what extent it is medieval, I am unqualified to discuss. On this see the work of Feenstra, such as “L'Histoire des Fondations” (1956) 24 Tijdschrift voor Rechtsgeschiedenis 381
-
(1956)
Tijdschrift voor Rechtsgeschiedenis
, vol.24
, pp. 381
-
-
-
66
-
-
85023040161
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Foundations in Continental law since the 12th century
-
in Richard Helmhob & Reinhard Zimmermann (Eds)
-
“Foundations in Continental law since the 12th century” in Richard Helmhob & Reinhard Zimmermann (Eds), Itinera Fiduciae (1998).
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(1998)
Itinera Fiduciae
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-
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67
-
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85023028000
-
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Both traditions have their conceptual problems: consider the corporation sole in English law and the For the latter's triumphant march across Europe see Council Directive
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Both traditions have their conceptual problems: consider the corporation sole in English law and the Einmanngesellschaft in German law. (For the latter's triumphant march across Europe see Council Directive 89/667.)
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Einmanngesellschaft in German law
, vol.89-667
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-
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68
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85023155323
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Als subjekt von Rechten und Verbindlichkeiten wird das Vermdgen selbst gcdacht, zu wclchem sie gehOren. (The patrimony itself is considered the subject of the rights and obligations which pertain to it.)
-
of 8th edn
-
Als subjekt von Rechten und Verbindlichkeiten wird das Vermdgen selbst gcdacht, zu wclchem sie gehOren. (The patrimony itself is considered the subject of the rights and obligations which pertain to it.) B. Windscheid Lehrbuch dts Pandektenrechts. (Vol.1, p.223 of 8th edn.)
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B. Windscheid Lehrbuch dts Pandektenrechts
, vol.1
, pp. 223
-
-
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69
-
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85023125927
-
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The English text (which is also authentic) reads: “The trust property, consisting of the property transferred, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary, and in which none of them has any real right.” For discussion of this provision see
-
The English text (which is also authentic) reads: “The trust property, consisting of the property transferred, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary, and in which none of them has any real right.” For discussion of this provision see J. E. C. Brierley, 1995 Revue Internationale de Droit Comparé 33.
-
(1995)
Revue Internationale de Droit Comparé
, pp. 33
-
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Brierley, J.E.C.1
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70
-
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85023143235
-
-
For an attempt (before the new code) to come to terms with the trust see
-
For an attempt (before the new code) to come to terms with the trust see Marcel Faribault, De la Fiducie dans la Province de Qutbec (1936).
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(1936)
De la Fiducie dans la Province de Qutbec
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Faribault, M.1
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71
-
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85023020805
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ll est … impossible de traduire les droits du trttstee comme étant ceux d'un ‘propriétaire’ dans notre conception de la propriété. Le intstee n ‘a ni l'usus …ni le fructus… ni L’ abusus
-
at Usus, fructus and abusus were in the ius commune taken as the essence of ownership
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“ll est … impossible de traduire les droits du trttstee comme étant ceux d'un ‘propriétaire’ dans notre conception de la propriété. Le intstee n ‘a ni l'usus …ni le fructus… ni L’ abusus.” (1955) 7 Revue Internationale de Droit Comparé 318, at 319. Usus, fructus and abusus were in the ius commune taken as the essence of ownership.
-
(1955)
Revue Internationale de Droit Comparé
, vol.7
, Issue.318
, pp. 319
-
-
-
72
-
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84881716735
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at criticises Lepaulle for failing to distinguish between ZweckvermÖgen and Sondervermögen (special patrimony). But Lepaulle's point is precisely that a trust is both a Sondervermögen and a ZweckvermÖgen. At n.21 Ryan writes that “the concept of Sondervermögen has … nothing to do with legal personality.” This is too strong. It is literally true that in the Cemeina Recht a Sondervermdöen was not a person, and that remains true in, for instance, modern German law. But this literal truth misses the substantive truth
-
K. W. Ryan (at (1961) 10 I.C.L.Q. 265) criticises Lepaulle for failing to distinguish between ZweckvermÖgen and Sondervermögen (special patrimony). But Lepaulle's point is precisely that a trust is both a Sondervermögen and a ZweckvermÖgen. At n.21 Ryan writes that “the concept of Sondervermögen has … nothing to do with legal personality.” This is too strong. It is literally true that in the Cemeina Recht a Sondervermdöen was not a person, and that remains true in, for instance, modern German law. But this literal truth misses the substantive truth.
-
(1961)
I.C.L.Q
, vol.10
, pp. 265
-
-
Ryan, K.W.1
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73
-
-
85023071080
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La solution la plus efficace et la plus simple est de doter le trust de la personne morale.” (“The most effective solution is to endow the trust with juristic personality
-
For instance
-
For instance: “La solution la plus efficace et la plus simple est de doter le trust de la personne morale.” (“The most effective solution is to endow the trust with juristic personality.” (1952) 4 Revue Internationale de Droit Compart 377.
-
(1952)
Revue Internationale de Droit Compart
, vol.4
, pp. 377
-
-
-
74
-
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85023145933
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Third Way?
-
Ansay's approach is comparable: see his valuable in J. Basedow, K. J. Hopt & H. Kötz (Eds)
-
Ansay's approach is comparable: see his valuable “Third Way?” in J. Basedow, K. J. Hopt & H. Kötz (Eds), Festschrift ftir Ulrich Drobnig (1998).
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(1998)
Festschrift ftir Ulrich Drobnig
-
-
-
75
-
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85023001012
-
Trusts and Switzerland
-
Swiss international private law seems to treat foreign companies as persons: see
-
Swiss international private law seems to treat foreign companies as persons: see N. Poncet, “Trusts and Switzerland” (1998) 26 International Business Lawyer 324.
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(1998)
International Business Lawyer
, vol.26
, pp. 324
-
-
Poncet, N.1
-
76
-
-
84923458162
-
-
4th edn See cases cited in South Africa is an interesting source of ideas as to how the trust should be integrated into a basically civilian system. The inter vivos trust tends to be explained on the basis of the stipulatio alteri. And until Braun v. Blann & Botha NNO1984 2 S.A. 850 the trust was often classified as a form of fideicommissum. The relationship between the fideicommissum and the trust is a subject which cannot be entered into here
-
See cases cited in A. M. Honoré & E. Cameron, Honorés South African Law of Trusts (4th edn, 1992), p.53. South Africa is an interesting source of ideas as to how the trust should be integrated into a basically civilian system. The inter vivos trust tends to be explained on the basis of the stipulatio alteri. And until Braun v. Blann & Botha NNO1984 2 S.A. 850 the trust was often classified as a form of fideicommissum. The relationship between the fideicommissum and the trust is a subject which cannot be entered into here.
-
(1992)
Honorés South African Law of Trusts
, pp. 53
-
-
Honoré, A.M.1
Cameron, E.2
-
77
-
-
2242458659
-
-
See further Fideicommissary substitution is a long way from the trust, but the fideicommissum purum is certainly trust-like. Fideicommissum was one of the sources of the Scottish trust
-
(See further David Johnston, The Roman Law of Trusts (1988).) Fideicommissary substitution is a long way from the trust, but the fideicommissum purum is certainly trust-like. Fideicommissum was one of the sources of the Scottish trust.
-
(1988)
The Roman Law of Trusts
-
-
Johnston, D.1
-
78
-
-
84881744306
-
Obstacles to the Reception of the Trust? The Examples of South Africa and Scotland
-
in A. M. Rabello (Ed.)
-
“Obstacles to the Reception of the Trust? The Examples of South Africa and Scotland” in A. M. Rabello (Ed.), Aequitas and Equity (1997).
-
(1997)
Aequitas and Equity
-
-
-
79
-
-
84971332167
-
-
“ Lafiducie est un contrat par lequel un constituant transfère tout ou panic de ses biens el droits à une fiduciare qui, tenant ces biens et droits séparés de son patrimoine personnel, agit dans un but déeterminé au profit d'unou ptiisieurs bénéficiares conformtment aux stipulations du contrat.” {Fiducie is a contractual arrangement whereby a settlor transfers all or part of his assets and rights to a fiduciary, who holds such assets and rights separately from his personal patrimony, and acts according to a determinate objective for the benefit of one or more beneficiaries in accordance with the terms of the contract.) French text from
-
“ Lafiducie est un contrat par lequel un constituant transfère tout ou panic de ses biens el droits à une fiduciare qui, tenant ces biens et droits séparés de son patrimoine personnel, agit dans un but déeterminé au profit d'unou ptiisieurs bénéficiares conformtment aux stipulations du contrat.” {Fiducie is a contractual arrangement whereby a settlor transfers all or part of his assets and rights to a fiduciary, who holds such assets and rights separately from his personal patrimony, and acts according to a determinate objective for the benefit of one or more beneficiaries in accordance with the terms of the contract.) French text from F. Sonneveldt (Ed.), Trust: Bridge or Abyss between Common and Civil Jurisdictions? (1992) p.68.
-
(1992)
Trust: Bridge or Abyss between Common and Civil Jurisdictions?
, pp. 68
-
-
Sonneveldt, F.1
-
80
-
-
84922945015
-
National Report for France
-
For discussion see in D. J. Hayton, S. C. J. i. Kortmann and H. L. E. Verhagen (Eds)
-
For discussion see P. Rémy, “National Report for France” in D. J. Hayton, S. C. J. i. Kortmann and H. L. E. Verhagen (Eds), Principles of European Trust Law (1999).
-
(1999)
Principles of European Trust Law
-
-
Rémy, P.1
-
82
-
-
79958161311
-
Scotland: The Evolution of the Trust in a Semi-Civilian System
-
For Ihe origins of ihe trust in Scotland see In Richard Helmholz & Reinhard Zimmermann (Eds)
-
For Ihe origins of ihe trust in Scotland see Gretton, “Scotland: The Evolution of the Trust in a Semi-Civilian System” In Richard Helmholz & Reinhard Zimmermann (Eds), Itinera Fiduciae: Trust and Treuhand in Historical Perspective (1998).
-
(1998)
Itinera Fiduciae: Trust and Treuhand in Historical Perspective
-
-
Gretton1
-
85
-
-
85023096062
-
The Drafting of a Trust Code in a Civil Law Jurisdiction
-
See in W. A. Wilson (Ed.)
-
See L. Oppenheim, “The Drafting of a Trust Code in a Civil Law Jurisdiction” in W. A. Wilson (Ed.), Trusts and Trust-like Devices (1981).
-
(1981)
Trusts and Trust-like Devices
-
-
Oppenheim, L.1
-
86
-
-
75849136734
-
The Mexican Fideicomiso: The Reception Evolution and Present Status of the Common Law Trust in a Civil Law Country
-
See further This contains an account of the influence of Lepaulle's thought on Mexican law
-
See further R. M. Pasquel, “The Mexican Fideicomiso: The Reception Evolution and Present Status of the Common Law Trust in a Civil Law Country” (1969) 8 Columbia Journal of Transnational Law 54. This contains an account of the influence of Lepaulle's thought on Mexican law.
-
(1969)
Columbia Journal of Transnational Law
, vol.8
, pp. 54
-
-
Pasquel, R.M.1
-
87
-
-
84902987041
-
-
But one must not exaggerate the clarity of Scots law in this area. The idea that the right of a beneficiary might be real was often toyed with, even in our own times. A leading scholar, W. A. Wilson, wrote in 1981 that the insistence of the Scottish courts that “the beneficiary has merely a personal right” was “regrettable.” at
-
But one must not exaggerate the clarity of Scots law in this area. The idea that the right of a beneficiary might be real was often toyed with, even in our own times. A leading scholar, W. A. Wilson, wrote in 1981 that the insistence of the Scottish courts that “the beneficiary has merely a personal right” was “regrettable.” (W. A. Wilson (Ed.), Trusts and Trust-like Devices (1981), at 239.
-
(1981)
Trusts and Trust-like Devices
, pp. 239
-
-
Wilson, W.A.1
-
88
-
-
85023012174
-
-
Already in 1681 Lord Stair laid it down that whilst “the property of the thing intrusted, be it land or moveables, is in the person of the intrusted, else it is not a proper trust.”
-
Already in 1681 Lord Stair laid it down that whilst “the property of the thing intrusted, be it land or moveables, is in the person of the intrusted, else it is not a proper trust.” (Institutions of the Law of Scotland 1,13,7.)
-
Institutions of the Law of Scotland
, vol.1
, Issue.13
, pp. 7
-
-
-
89
-
-
84881721473
-
National Report for the Netherlands
-
in D. J. Hayton, S. C. J. J. Kortmann and H. L. E. Verhagen (Eds) It is encouraging to see that the Scottish experience may prove influential if the Netherlands adopts the trust: see The “National Report for Scotland” (by K. G. C. Reid) in this volume is of value
-
It is encouraging to see that the Scottish experience may prove influential if the Netherlands adopts the trust: see S.C.J.J. Kortmann and H. L. E. Verhagcn, “National Report for the Netherlands” in D. J. Hayton, S. C. J. J. Kortmann and H. L. E. Verhagen (Eds), Principles of European Trust Law (1999). The “National Report for Scotland” (by K. G. C. Reid) in this volume is of value.
-
(1999)
Principles of European Trust Law
-
-
Kortmann, S.C.J.J.1
Verhagcn, H.L.E.2
|