Private Law Theory

ABSTRACT
In this article, we present a theory of express trusts as the embodiment of a legal form that enables a distinctive sort of commitment. We begin by exploring the importance of commitments in moral life guided by the value of autonomy before arguing that facilitative private law is normatively desirable in a liberal society to the extent that it enables individuals to make different sorts of commitment in the pursuit of purposes and goals. We then turn to express trusts, explaining how the commitment entailed in such trusts is distinctive when compared with the commitments entailed in contracts, fiduciary relationships and corporations. Whereas contracts and fiduciary relationships facilitate bilateral commitments between individuals, and corporations facilitate associative commitments amongst members or shareholders, express trusts have the unique capacity to facilitate the commitment of assets to enduring stewardship. When disponers place assets in a trust for enduring stewardship, both they and the trustee commit themselves to a governance regime in which no party can override the disponers’ objectives and all trust parties have the welfare of the trust in mind. To the extent that express trusts enable this distinctive species of commitment, they are, from a liberal standpoint, to be welcomed in facilitative private law. Finally, we address the justificatory limits of a commitment theory of express trusts. We argue that a commitment theory calls into question some uses of express trusts. We also argue that external policy considerations properly limit the use of express trusts notwithstanding that such trusts are, prima facie, normatively attractive in light of a commitment theory.

Ho, Lusina and Harding, Matthew, A Commitment Theory of Express Trusts (February 7, 2025) (2025) 141 Law Quarterly Review 245.