Trusts in Common and Continental Law

This research is devoted to testing the compatibility of trusts with the system of continental (civil) law. The premise of this research is an intention to rebut the widespread, a rather radical opinion that trusts unequivocally contradict the history and the system of the European legal tradition. The work includes an introduction, three chapters with multiple sections and subsections, a conclusion, and a list of references. The first chapter explores the original trust concept as it is presented in Anglo-Saxon (common) law, particularly how and why trusts historically emerged from their progenitor that is known as “use”, and what constitutes the core content of trusts as of a distinct legal relationship. The second chapter is devoted to the place of trusts in continental (civil) law. The author presents two alternative theories for the emergence of the trust from the ancient concepts of “fideicommissum” of Roman law and “salman” of early German law. The author then discusses the theoretical core of trusts from the point of the “in rem” / “in personam” dichotomy, rebuts the arguments that are typically used by the trust sceptics and lays down some of the practical incarnations of trusts via the concepts of continental (civil) law. The third chapter examines two attempts at handling trusts at the international level, namely the Hague Convention on the Law Applicable to Trusts and on their Recognition and Book X of the Draft Common Frame of Reference. The author formulates six conclusions that reflect the structure of the research. It is underlined that trusts would have a mixed character in the eyes of a civilian lawyer. Fundamentally, trusts possess an “in personam” core, i.e., a customizable relationship between the trustee and the beneficiary, yet its “in rem” side often attracts the spotlight because of such features as its unique remedies against third-parties, the following of the trust after the trust property in case of its transfer and the formation of special trust patrimony alongside with the trustee’s private patrimony. The premise of trust sceptics remains irreparably flawed, as it is shown not just by the author, but also by multiple civilian legal systems where different variations of trust-like devices are successfully employed.