"Trusts" and "Living Law" in Europe

Abstract

The general trust doctrine and practice which is a universal common-law device for handling private affairs of individuals is unknown to European laws.' Continental and Latin-American comparatists have reacted to it according to their temperament, erudition, analytical abilities, isolationist inclinations, or sentimental preferences. The variety of their opinions is, in fact, quite commensurate with the kaleidoscopic nature of the institution itself: . . we deem it dangerous to incorporate . . . in our law an exotic institution like the AngloAmerican trust, says a somewhat conservative -Spanish gentleman; 't trust law piles up outmoded conceptions which have become useless and foolish fictions, at which nobody will be more marvelling than the English themselves once they have them abolished, foretells a Dutch professor who emphasizes his general veneration for the English law; 2 . the trust concept and trust practice do not fit into the continental legal systems. We are not faced with a minor incongruity between civil and common law, but with a basic contrariety as to their legal approach, is the opinion of a keen German student of both systems; 3 trust is a cuckoo in the civil-law nest-one of the famous last words of Sir Maurice Amos 4-is a middle-of-the-road opinion which assumes the existence of trusts in European law but considers them out of line. On the progressive side of the ledger, we find the wishful voices of those who have been impressed with the flexibility of the commonlaw trusts, and have made various exploratory expeditions through the