The nature of trusts
It is often argued that there are “traditional trust principles” which ought to be observed. We can call this the “traditional view” of trusts. This view is fundamentally wrong. In fact, the trust has survived because lawyers and judges have repeatedly adapted it to meet new commercial needs. Let’s call this the “true nature” of trusts. The true nature of trusts law is not rigidity, but evolution. Lawyers modify trust structures to achieve their clients’ objectives. Throughout history, the courts and Parliament have decided whether to recognise, restrict or reject these legal innovations. Origins of the trust Trusts are a creation of Equity, which has always performed a corrective and adaptive role within private law. This is the first argument against the traditional view. The trust’s origins illustrate this point. In medieval England, trusts were known as “uses”. Landowners used them to avoid the burdens of feudal ownership. Parliament prohibited this practice with the Statute o...
