The State of the Art of Comparative Research in the Area of Trusts

Abstract

Trusts probably represent the instrument common lawyers have always been most proud of, frequently referring to it as their greatest achievement and their most original creation. Equally, trusts are probably the legal creation of which civil lawyers have been most ‘envious’, whilst at the same time being an institution that they find somewhat puzzling. In fact, while few institutions have attracted the level of fascination trusts have, few have also met with the same distrust and suspicion, partly due to the fact that they are commonly viewed as a device for tax evasion or to frustrate the rights of creditors and spouses.

This chapter seeks to explore how comparative research, in common law, civil law and mixed legal jurisdictions, has engaged with the study of trusts and what the scope and the purposes of the enquiry have been. In doing so, it will attempt to shed light on the achievements as well as on the shortcomings of the research in this field. It will argue that whilst comparative studies have gone a long way towards aiding the understanding of trusts, there is more to be done in an area of the law still fraught with some misconceptions.

Keywords: Trusts, Comparative Trust Law, Property Law.