This course considers both theoretical and practical aspects of the law governing the creation and operation of express trusts. After reviewing the myriad forms and functions of express trusts, attention will concentrate on requirements for creation of a valid trust. Intrinsic and drafting issues regarding the declaration of trust, the trust terms and the subject-matter of the trust will be a particular focus. This review of the law will consider the problems which arise when the law’s requirements are not satisfied and the extent and manner in which the courts seek to ‘make the best of a bad job’ in such circumstances. A recurrent theme will be how questions of the law’s response to ‘misadventures’ in drafting or formalising the trust expose profound conceptual questions about the nature of the trust as a legal construct.
The second half of the course considers, trusts which are created to advance purposes (rather than ‘classical’ private benefit of persons) - both in not-for-profit and in commercial settings. Here too attention is divided between both the practical issues – of how the rules work and their problems ‘escaped’ – and the theoretical debates about criticisms of the ‘stringency’ or ‘generosity’ of the law in recognising such trusts.
Students taking this module may also benefit from taking the module ‘Fiduciaries in English Law’ in parallel (but each module can be studied independently of the other).