Explaining the Trust

Abstract

This article offers an account of the nature of the trust and the beneficiary's interest under a trust. It distinguishes the obligational and proprietary theories of the trust and explains why each of these traditional approaches falls short as a complete theory of the trust, that is to say the problems of explaining proprietary claims under the obligational theory and the problem of explaining the trustee's duties under the proprietary theory. This includes discussion of accessory liability, the persistent right theory, the idea of dual or split ownership, substantive fusion of law and equity, bona fide purchase and rights as trust property. I suggest an analysis of the trust as an institution with two separate dimensions, a contractual dimension involving personal rights arising from the consent or agreement of the trustee and a proprietary dimension involving proprietary right arising from a grant or transfer of property. I also discuss the remedial regime governing a recipient of trust property, and I consider what trust law implies about the nature of private property.