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Waal, Marius J. de --- "Trust Law" [2006] ELECD 220; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 69

Section Title: Trust Law

Author(s): Waal, Marius J. de

Number of pages: 12

Extract:

69 Trust law
Marius J. de Waal


1 Introduction
`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 there-
fore be persons such as tutors administering property for their pupils,
curators for the mentally ill and agents holding property for their princi-
pals. Relationships such as these are sometimes referred to as trusts `in the
wide sense' (Cameron et al., 2002, p. 3) and could include trust-like insti-
tutions (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 beneficia-
ries or a charitable purpose.'
This corresponds closely to the definition found in article 2 of the Hague
Convention on the Law Applicable to Trusts and on their Recognition
(1985): `For the purposes of this Convention, the term "trust" refers to
the legal relationships ...