Conceptualising Property Law
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Conceptualising Property Law

Integrating Common Law and Civil Law Traditions

Yaëll Emerich

Conceptualising Property Law offers a transsystemic and integrated approach to common law and civil law property. Property law has traditionally been excluded from comparative law analysis, common law and civil law property being deemed irreconcilable. With this book, Ya'll Emerich aims to dispel the myth that comparison between these two systems of property is impossible. By establishing a dialogue between common law and civil law property, it becomes clear that the two legal traditions share common ground in the way that they address legal, cultural, and social issues related to property and wealth.
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Chapter 8: Trusts and fiducia

Yaëll Emerich


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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