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Trusts and Patrimonies

Trusts and Patrimonies

Edited by Remus Valsan
Copyright Date: 2015
Pages: 272
Stable URL: http://www.jstor.org/stable/10.3366/j.ctt16r0j0c
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  • Book Info
    Trusts and Patrimonies
    Book Description:

    This volume explores how the private law concepts of trust and patrimony interact in various jurisdictions, with a view to advancing the understanding of the trust as a fundamental legal concept. It comprises new and previously published papers written by distinguished comparative law scholars. The authors investigate whether the common law trust could be understood as a civil law patrimony by appropriation, and whether civil law and mixed traditions could create local versions of the common law trust using patrimony as the main conceptual building block.

    eISBN: 978-0-7486-9775-5
    Subjects: Law
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Table of Contents

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  1. Front Matter (pp. i-iv)
  2. Table of Contents (pp. v-vi)
  3. Preface and Acknowledgements (pp. vii-viii)
    Remus Valsan
  4. List of Contributors (pp. ix-ix)
  5. List of Abbreviations (pp. x-xiii)
  6. Table of Cases (pp. xiv-xviii)
  7. INTRODUCTION
    • 1 The Trust as Patrimony: An Introduction (pp. 3-10)
      Remus Valsan

      Trusts exist in a multitude of forms across legal systems and traditions. This diversity of instruments makes it remarkably difficult to give a straightforward answer to a simple question:whatis a trust? This volume does not purport to find a definitive answer to this thorny question. It aims, instead, to explore potential answers using the patrimony as the main conceptual tool. Before addressing the problem of defining the trust from a comparative private law angle, however, a more fundamental question needs to be given some consideration:whydo we need to search for, and pin down, a common denominator...

  8. PART I: PATRIMONY AND THE COMMON LAW TRUST
    • 2 Lepaulle Appropriated (pp. 13-41)
      Alexandra Popovici and Lionel D Smith

      We were honoured when Remus Valsan invited us to translate into English this important text by Pierre Lepaulle, for inclusion in the present volume.¹ The Crépeau Centre has a tradition of translating foundational texts of the French civilian tradition.² The goal is to make these texts available to an English readership, while preserving the civilian character of the original. But working in civil law English, for a common law and civil law audience, is not an easy enterprise; both readerships might feel a little uneasy with certain choices made. Translators, like trustees, exercise judgment on behalf of another; they do...

    • 3 Trust and Patrimony (pp. 42-61)
      Lionel D Smith

      The trust is one of the characteristic features of the common law tradition, but it is not confined to the common law world. An established law of trusts, combined with a civilian understanding of property law, is found in a number of jurisdictions, including both mixed jurisdictions and pure civil law systems.¹ It is clearly possible to have “trusts without Equity”.² In this paper, I will attempt to show that the way in which these jurisdictions understand the trust can help common lawyers to understand better their own trust institution. This often happens when we look at our law “outside-in”;...

    • 4 Square Peg, Round Hole? Patrimony and the Common Law Trust (pp. 62-84)
      Paul Matthews

      The trust is a big problem for civil lawyers. Partly it is a problem for a good reason. But also for a bad one. The good reason is that the trust is a legal relationship that has to do with property rights, and the notion of property in the civil law is simply too different from that in the common law world to enable the trust to pass from one type of system to the other without both a comparative understanding of this significant difference and some suitable plan for coping with it.¹ Both these things can be achieved, and...

  9. PART II: PATRIMONY AND THE SCOTTISH TRUST
    • 5 Trusts without Equity (pp. 87-109)
      George L Gretton

      For the comparatist the trust is problematic. For this there are two main reasons. The first is that the slogan of modern comparative law – “compare function rather than form” – does not work for the trust.² One cannot identify the function of the trust because there is no such function. The trust is functionally protean. Trusts are quasi-entails, quasi-usufructs, quasi-wills, quasi-corporations,³ quasi-securities over assets,⁴ schemes for collective investment,⁵ vehicles for the administration of bankruptcy, vehicles for bond issues,⁶ and so on and so forth.⁷ In software terminology, trusts are emulators. They are not even confined to private law. They...

    • 6 Patrimony not Equity: The Trust in Scotland (pp. 110-126)
      Kenneth G C Reid

      The opening words of William F Fratcher’s volume on Trust in theInternational Encyclopaedia of Comparative Laware these:¹

      The trust is a legal device developed in England whereby ownership of property is split between a person known as a trustee, who has the rights and powers of an owner, and a beneficiary, for whose exclusive benefit the trustee is bound to use those rights and powers.

      This is a traditional definition. The trust, we are told, is English in origin, and its central feature is the division of ownership between trustee and beneficiary. At those words a lawyer from...

    • 7 Scottish Trusts in the Common Law (pp. 127-160)
      Lionel D Smith

      It is a great pleasure to be here this evening, to give this twelfth annual W A Wilson Memorial Lecture. More than that, it is a genuine honour to be here, at this great law faculty in this great city, to give a lecture in memory of a great jurist and a great teacher. Unlike many of you, I did not know Bill Wilson. But I have gleaned a sense of the breadth of his scholarly interests, and I think also of his character, from having read his published work, and in particular from having read the book of essays...

  10. PART III: TRUST AND PATRIMONY IN FRANCE, QUEBEC AND THE NETHERLANDS
    • 8 Translating Part of France’s Legal Heritage: Aubry and Rau on the Patrimoine (pp. 163-198)
      Nicholas Kasirer

      In a once important and now neglected book published in the 1950s, Germanborn art historian Nikolaus Pevsner sought to describe the “Englishness of English art” as part of a broader account of the geography of painting and sculpture. This was not, it would seem, undertaken as an exercise in identity politics or aesthetic nationalism – Pevsner used what his publisher called “the unbiased eye of a foreigner” to identify aspects of the seventeenth and eighteenth-century English character that found dominant and recurring expression in the visual arts. Quite apart from rather fantastical conclusions – the author contended that “practical sense,...

    • 9 Trusting Patrimonies (pp. 199-220)
      Alexandra Popovici

      The trust has always been part of Quebec civil law. However, its inherent English nature, combined with the little attention it received under the Civil Code of Lower Canada, created an uneasy institution in quest of an identity. The recodification of 1994 was the ideal moment to civilise the beast, and it was through the notion of the patrimony, a civilian notion if there is one, that this civilisation took place. The introduction of the patrimony by appropriation in the Civil Code of Québec was prompted by the desire to recast the alien institution of the trust in a civilian...

    • 10 Dual Patrimony Dutch Style: The Magic Spell for Introducing the Trust in the Netherlands? (pp. 221-243)
      Emile Schmieman

      Trusts have long been considered to be contrary to the Netherlands’ legal principle ofnumerus claususofrights in rem. For this reason, the introduction of a trust has been regarded as impossible for many years. This chapter will discuss the possibility of conceptualising a Dutch trust using the dual patrimony theory, that is, the concept where a person, natural or legal, holds two patrimonies that are distinct from each other. In Dutch law, however, the term “dual patrimony” would cause great confusion: the principle is that a person can have only one patrimony, to which all his assets belong....

  11. Index (pp. 244-254)