Private Law Theory

ABSTRACT
The question of the ‘irreducible core’ of the common law trust has been debated for some years. Recently, this question has taken on a new life as, all over the common law world, settlors have tested the outer limits of what can be done with the trust. In the case of inter vivos trusts, this usually involves an effort to retain control over the trust while reaping some of the benefits that would arise from an alienation of the property in question. This paper asks why there is a mandatory core to the common law trust, and provides the most basic answer: the trust is a legal concept and one who wishes to create a trust must create something that corresponds to that concept. In so doing, the paper casts doubt on some Canadian decisions, and on some dicta of the Supreme Court of Canada.

Smith, Lionel, Confusion, Illusion, or Delusion: The Irreducible Core of the Common Law Trust (September 13, 2023). Forthcoming in the Supreme Court Law Review.