Principles of European Trust Law

by Hayton, David J.

• ISBN13: 9789041197269
• ISBN10: 9041197265
• Format: Hardcover
• Copyright: 1999-02-01
• Publisher: Kluwer Law Intl

Summary

Since the ratification of the Hague Trust Convention by the Netherlands and Italy, The question of whether civil law countries ought to have a trust or a legal institution resembling it has gained importance. the Business and Law Research Centre at the University of Nijmegen founded an international working group of experts in the field of trust law in 1996. This group developed eight principles of European trust law designed to facilitate transactions within European jurisdictions, To enable countries to recognise the potential For The development of new domestic legal concepts and to provide guidance as to how these developments can be framed in different legal and socio-economic contexts. This book provides a detailed analysis of these principles both from a common law and a civil law point of view. In particular, The national reports give an overview of the current law relating to trusts and fiduciary relationships and, In the case of civil law jurisdictions, whether the trust concept can be incorporated in the domestic legal systems on the basis of the eight principles.

Table of Contents

Preface	xiii
PART I
Introduction to the Principles of European Trust Law	3	(10)
Trusts in common law and civil law	3	(2)
The trust as an instrument of investment, security and estate planning	5	(4)
The Hague Trust Convention	9	(2)
The purpose of this book	11	(2)
Principles of European Trust Law	13	(8)
Main characteristics of the trust	13	(1)
Creation of the trust	14	(1)
Trust fund	15	(1)
Trusts for beneficiaries or for enforceable purposes	16	(1)
Trustees' duties and powers	17	(1)
Remedies against trustees for breach of trust	18	(1)
Liabilities of third parties	19	(1)
Termination of a trust	20	(1)
Principes de Droit Europeen du Trust	21	(8)
Principales caracteristiques du trust	21	(1)
Creation du trust	22	(1)
Le fonds du trust	23	(1)
Trust pour beneficiaires ou trust d'interet general	24	(1)
Les devoirs et les pouvoirs du trustee	25	(1)
Remedes juridiques contre le trustee en cas de violation du trust	26	(1)
Responsabilite de tiers	27	(1)
Fin du trust	28	(1)
Commentary	29	(38)
General introduction to the wide-ranging trust concept	29	(5)
Implementation of these Principles	34	(4)
Commentary on the Principles article by article	38	(29)
Main characteristics of the trust	38	(5)
Creation of the trust	43	(1)
Trust fund	44	(4)
Trusts for beneficiaries or for enforceable purposes	48	(4)
Trustees' duties and powers	52	(3)
Remedies against trustees for breach of trust	55	(4)
Liabilities of third parties	59	(2)
Termination of a trust	61	(6)
PART II
National Report for Scotland	67	(18)
Introduction	67	(1)
Existing law	68	(11)
Patrimony and personality	68	(1)
The beneficiary	69	(3)
The trustee	72	(1)
Complexities	73	(2)
Creation	75	(1)
Secrecy	76	(1)
Termination	76	(1)
Uses of the trust	77	(2)
Further developments of trusts	79	(3)
Trusts as security devices	79	(3)
Constructive trusts	82	(1)
Commentary on the Principles article by article	82	(3)
Main characteristics of the trust	82	(1)
Creation of the trust	83	(1)
Trust fund	83	(1)
Trusts for beneficiaries or for enforceable purposes	83	(1)
Trustees' duties and powers	83	(1)
Remedies against trustees for breach of trust	83	(1)
Liabilities of third parties	84	(1)
Termination of a trust	84	(1)
National Report for Germany	85	(20)
Introduction	85	(1)
Existing law	86	(13)
Testamentary trusts	86	(2)
Charitable trusts	88	(1)
Trusts as a security device	88	(1)
The fiduziarische Treuhand as a trust-like device	89	(2)
Applications of the fiduziarische Treuhand	91	(2)
The protection of Treuhand assets	93	(2)
Alienation of Treuhand assets	95	(1)
Reception of the trust in Germany?	96	(3)
Commentary on the Principles article by article	99	(6)
Main characteristics of the trust	99	(1)
Creation of the trust	99	(2)
Trust fund	101	(1)
Trusts for beneficiaries or for enforceable purposes	101	(1)
Trustees' duties and powers	102	(1)
Remedies against trustees for breach of trust	102	(1)
Liabilities of third parties	102	(1)
Termination of a trust	102	(3)
National Report for Switzerland	105	(18)
Introduction	105	(2)
Existing law	107	(8)
The foundation	108	(1)
The fiducie	109	(6)
Proposals for further development of trusts	115	(3)
Commentary on the Principles article by article	118	(5)
Main characteristics of the trust	118	(1)
Creation of the trust	118	(1)
Trust fund	118	(1)
Trusts for beneficiaries or for enforceable purposes	119	(1)
Trustees' duties and powers	119	(1)
Remedies against trustees for breach of trust	120	(1)
Liabilities of third parties	120	(1)
Termination of a trust	121	(2)
National Report for Italy	123	(8)
Introduction	123	(1)
Existing law	123	(6)
Fondo patrimoniale	123	(1)
Undeclared testamentary trusts (secret trusts)	124	(1)
Unilateral segregation	124	(2)
Nominee accounts	126	(1)
Special cases of segregation	126	(2)
Case law developments	128	(1)
Proposals for further developments of trusts	129	(2)
National Report for France	131	(28)
Introduction	131	(2)
General	131	(1)
Recognition of trusts created under foreign law	132	(1)
Existing law	133	(10)
Fiducie	133	(1)
Commercial uses of the trust	134	(1)
Fiducia cum amico	134	(1)
UCITS	134	(1)
Pension funds	135	(1)
Temporary transfers of securities	136	(1)
Fiducia cum creditore	137	(1)
Transfer of ownership of business receivables to a fiduciaire as security	137	(1)
``Pawning'' of bills	138	(1)
Transfer of ownership of a sum of money to a fiduciaire	138	(1)
Transfer of ownership of other property to a fiduciaire	138	(1)
Family uses of the trust	139	(1)
Fideicommis and fiducie for purposes of a gift	139	(2)
Executors and special personal representatives	141	(1)
Trust-like aspects of life insurance	142	(1)
Charitable trusts	142	(1)
Gifts to existing associations	142	(1)
Foundations	143	(1)
Further development	143	(5)
Effect of the Hague Convention on the adaptation of the trust to domestic law	143	(2)
Towards a fiducie with a segregated corpus?	145	(3)
Commentary on the Principles article by article	148	(11)
Main characteristics of the trust	148	(2)
Creation of the trust	150	(1)
Trust fund	150	(2)
Trusts for beneficiaries or for enforceable purposes	152	(2)
Trustees' duties and powers	154	(1)
Remedies against trustees for breach of trust	155	(2)
Liabilities of third parties	157	(1)
Termination of a trust	157	(2)
National Report for Spain	159	(14)
Introduction	159	(2)
Existing law	161	(3)
Fiducia cum amico	161	(1)
Pension and investment funds	162	(2)
Foundations	164	(1)
Proposals for further developments of trusts	164	(2)
Commentary on the Principle article by article	166	(7)
Main characteristics of the trust	166	(1)
Creation of the trust	167	(1)
Trust fund	167	(1)
Trusts for beneficiaries or for enforceable purposes	168	(1)
Trustees' duties and powers	169	(1)
Remedies against trustees for breach of trust	170	(1)
Liabilities of third parties	171	(1)
Termination of a trust	171	(2)
National Report for Denmark	173	(22)
Introduction	173	(1)
Existing law	174	(6)
Fiduciary ownership and fiducia cum amico	174	(1)
Pooling of assets for pension purposes (puljepension)	174	(1)
Nominee accounts	175	(1)
Mutual funds	176	(1)
Mortgage trusts	176	(1)
Ordinary ownership	177	(1)
Special arrangements	177	(1)
Client accounts in law firms	177	(1)
Statutory custodians	178	(1)
The tying up of funds (Bandlaeggelse)	178	(1)
Partnership (Interessentskab)	179	(1)
The foundation (fond)	180	(1)
Proposal for further developments of trust-like relationships under Danish law	180	(3)
Commentary on the Principles article by article	183	(12)
Main characteristics of the trust	183	(2)
Creation of the trust	185	(1)
Trust fund	185	(3)
Trusts for beneficiaries or for enforceable purposes	188	(2)
Trustees' duties and powers	190	(1)
Remedies against trustees for breach of trust	190	(2)
Liabilities of third parties	192	(1)
Termination of a trust	192	(3)
National Report for the Netherlands	195	(1)
Introduction	195	(1)
Existing law	196	(1)
Fiducia cum amico (fiduciary ownership)	196	(2)
The nominee account	198	(1)
Certification	198	(1)
Bewind	199	(1)
Mandate	200	(2)
The foundation (stichting)	202	(1)
The mutual fund	202	(1)
Security trustee	203	(1)
Proposals for further development of trust-like relationships under Dutch Law	203	(1)
The current state of affairs	203	(2)
How to introduce the trust into Dutch law?	205	(1)
Obligational approach	205	(2)
Proprietary approach	207	(1)
Personification: the stichting approach	207	(1)
Commentary on the Principles article by article	208	(1)
Main characteristics of the trust	209	(1)
Creation of the trust	210	(1)
Trust fund	211	(1)
Trusts for beneficiaries or for enforceable purposes	211	(1)
Trustees' duties and powers	212	(1)
Remedies against trustees for breach of trust	213	(1)
Liabilities of third parties	214	(1)
Termination of a trust	215