Integrating Common Law and Civil Law Traditions
Chapter 8: Trusts and fiducia
It is often argued that it is impossible to make sense of the trust in the language of the civil law, as trust would be the very antithesis of civilian ownership. According to the International Encyclopedia of Comparative Law 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”. Given this conception, it follows that the trust is a creature of the common law and that its main characteristic is fragmentation of title. This has been perceived for some time as meaning that the very concept of trust would remain forever alien to civilian legal traditions. However, the question arises as to the necessity of defining trusts by reference to fragmentation of title (with legal title being attributed to the trustee and beneficial title to the beneficiary or cestui que trust).
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