Mistaking the Trust

Hong Kong Law Journal, Vol. 40, p. 747, 2011

29 Pages Posted: 14 Nov 2010 Last revised: 4 Dec 2013

See all articles by Lionel Smith

Lionel Smith

Downing Professor of the Laws of England

Date Written: November 6, 2010

Abstract

In this paper the author explores a number of misapprehensions concerning common law trusts, under three headings. The first is “misusing trusts,” in which he describes situations in which a failure to appreciate the juridical nature of the trust relationship can lead to the breakdown of carefully planned transactional structures. In the second, “mischaracterizing trusts,” he describes how legislatures, especially in Canada, have frequently treated the common law trust as if it were a person or an entity, with unfortunate results. The third is “misappropriating trusts,” in which he describes an opposite and more recent development in US law, namely a decision to label certain corporations as trusts. In his conclusion, the author appraises the significance of all of these misapprehensions and the problems to which they may lead, and offers some positive suggestions as to how they can be addressed.

Keywords: Trusts, Legal Personality, Legislation, Comparative Law

JEL Classification: K11, K12, K19

Suggested Citation

Smith, Lionel, Mistaking the Trust (November 6, 2010). Hong Kong Law Journal, Vol. 40, p. 747, 2011, Available at SSRN: https://ssrn.com/abstract=1704006

Lionel Smith (Contact Author)

Downing Professor of the Laws of England ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

HOME PAGE: http://www.law.cam.ac.uk/people/academic/d-smith/83102

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