Unpacking the trust concept: closing the common law–civil law gap

Abstract

Abstract This article builds on the practical experience of a Swiss lawyer turned English solicitor, first in understanding the trust concept and then explaining it to others. The main stumbling block is the idea of a ‘split’ ownership, but also misconceptions about common law, its legal sources and even the language used by common lawyers to describe the trust mechanism. A proper understanding of the trust mechanism requires a degree of ‘unpacking’, ‘unlearning’ and even ‘rewiring’, and the first part of this article uses familiar language to deconstruct and demystify several misconceptions. The second part will provide some reverse engineering and put everything back together. Common lawyers may find this ‘deconstructing’ and ‘reconstructing’ exercise helpful, too, as it provides some insight into the challenges faced by their peers outside the common law world in understanding what is going on here.