A main characteristic of the common law trust is the concept of dual ownership. This concept establishes a distinction between a trustee’s legal ownership of the assets of the trust and a beneficiary’s equitable title to those same assets. In civilian systems, however, because ownership is considered absolute and indivisible, no similar division of legal and equitable title is possible. This difference in the conception of ownership between the civilian and common law systems raises great challenges in fitting the concept of trusts into civilian systems. Questions arise as to whether it is possible to introduce the trust into civilian jurisdictions; if yes, how to accommodate the notion of dual ownership. This article indicates the introduction of the trust into civilian jurisdictions, both mixed jurisdictions and pure civil law systems. It analyses the different ways adopted by these jurisdictions to transplant dual ownership of trust property under common law into their civilian property systems where ownership is absolute. The article indicates that although the trust is considered a product of equity, it is possible and necessary to introduce the trust into civilian jurisdictions, in particular with the development of international finance and investment.
Ruiqiao Zhang, A comparative study of the introduction of trusts into civil law and its ownership of trust property. Trusts and Trustees (2015) doi: 10.1093/tandt/ttv118, first published online: June 18, 2015.