Elgar Encyclopedia of Comparative Law, Second Edition
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Elgar Encyclopedia of Comparative Law, Second Edition

Edited by Jan M. Smits

Written by leading authorities in their respective fields, the contributions in this accessible book cover and combine not only questions regarding the methodology of comparative law, but also specific areas of law (such as administrative law and criminal law) and specific topics (such as accident compensation and consideration). In addition, the Encyclopedia contains reports on a selected set of countries’ legal systems and, as a whole, presents an overview of the current state of affairs.
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Chapter 74: Trust law*

Marius J. de Waal


‘A trust is an arrangement recognised by law under which one person holds property for the benefit of another’ (Riddall, 2002, p. 1). This definition describes the basic ‘trust idea’ underlying the whole concept of the trust. However, as a definition of the trust, it is too wide because it could apply to a diversity of legal relationships. Included in this definition could therefore be persons such as tutors administering property for their pupils, curators for the mentally ill and agents holding property for their principals. Relationships such as these are sometimes referred to as trusts ‘in the wide sense’ (Cameron et al., 2002, p. 3) and could include trustlike institutions (i.e., not ‘proper’ trusts) in Continental Europe. In other words, there is a difference between ‘a law of entrusting and a law of trusts’ (Honoré, 1997, p. 794). A definition of the trust must therefore be narrower and more specific (De Waal, 2000, p. 548). Hayton (2001, p. 1) provides such a definition for English law: ‘A trust arises where ownership of property is transferred by a person to trustees to be managed or dealt with for the benefit of beneficiaries or a charitable purpose.’

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