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The common law of trusts

The common law of trusts. Ownership and obligation Lionel Smith 22 March 2011. A bill of 1457.

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The common law of trusts

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  1. The common law of trusts Ownership and obligation Lionel Smith 22 March 2011

  2. A bill of 1457 • To the reuerentfadir in God and right gracious lordeErchesbissop of Caunterbury, Chaunceler of Engeland, Mekelybesechen your pover and contynuelleOratours, Robert Bale and Agneys his wyf, doughter and heire to John Haunsard … grevouslycompleynyngageynstoon Nicholas Marchal … [the facts supporting the grievance are recited].

  3. A bill of 1457 • And be this mean the [defendant] came to the possession of thoogoodys [of the petitioners], ageynst all right feithe & good consciens, & to right hevy ensample & greteperill to the soule of the seide Thomas, wtout your gracious remedy: • Wherfor please hit your gracious lordeship the premysses tenderly to considre, and for as moche as your seideBesechers by cours of the comenlawe may haue noon recover ageynst the seide Nicholas … to graunte a writtesubpena to be directed to the same Nicholas Marchall, comaundynghym to appere afore the kyng our Soveraynelorde in his Chauncery at a certeyne day & upon a certeynepeyne be your lordeship to be limet, there to answer to the premysses … • Attereuerence of god & in dede of charitee.

  4. Indian Trusts Act, 1882 • A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another …

  5. Modern common law trusts • Express (or intentionally created) trusts • Wealth transmission within the family • Charities • Commercial applications: trusts for bond holders, pensions and other collective investments, securitization • Informal arrangements involving property

  6. Modern common law trusts • “resulting” trusts or “jumping back” trusts • A gift may not be what it seems … if it is presumed to create a trust • Pecorev. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795

  7. Modern common law trusts • Constructive trusts • Constructive trusts arise by operation of law when the law creates an obligation to hold particular property for the benefit of another • Pettkusv. Becker, [1980] 2 S.C.R. 834: where one party has been unjustly enriched at the expense of the other, he may hold property on constructive trust • Foskettv. McKeown, [2001] 1 A.C. 102 (H.L.): tracing of trust property into proceeds

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