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TRUSTS IN THE DRAFT COMMON FRAME OF REFERENCE: THE “BEST SOLUTION” FOR EUROPE?

Published online by Cambridge University Press:  20 June 2011

Alexandra Braun
Alexandra Braun
Affiliation:
CUF Lecturer, University of Oxford and Fellow and Tutor in Law, Lady Margaret Hall, Oxford.
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The Cambridge Law Journal , Volume 70 , Issue 2 , July 2011 , pp. 327 - 352
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Copyright © Cambridge Law Journal and Contributors 2011

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References

1 European Commission, Communication to the European Parliament and the Council – A more coherent European Contract Law: An Action Plan, COM(2003) 68 final, OJ 2003 C 63/1.

2 Ibid, para 63(b).

3 European Commission, Communication to the European Parliament and the Council – European Contract Law and the Revision of the Acquis: The way forward, COM(2004) 651 final.

4 For a detailed account of the developments, see Whittaker, S., “A Framework of Principle for European Contract Law?” (2009) 125 L.Q.R. 616 at pp. 617Google Scholar ff.

5 Altogether, six volumes were published, including ten Books with comments as well as comparative notes. The comments have the function to elucidate each rule, while the comparative notes reflect the legal position in the national legal systems and the current Community law. C. von Bar and E. Clive (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (Oxford 2009), vols. 1–6.

6 Green paper from the Commission on Policy Options for Progress Towards a European Contract Law for Consumers and Businesses COM(2010)348 final.

7 Synthesis of the Fourth Meeting, 1–2 September 2010.

8 In this sense, von Bar and Clive, Principles, above note 5, at p. 5709.

9 In this sense see, von Bar and Clive, Principles, above note 5, at p. 5670. The drafters define the term in the following manner: “A ‘juridical act’ is any statement or agreement, whether express or implied from conduct, which is intended to have legal effect as such. It may be unilateral, bilateral or multilateral.”

10 Article X-1:201.

11 Article X-2:103.

12 For an explanation see von Bar and Clive, Principles, above note 5 at pp. 5689–5690.

13 See Article X-2:103 on the “Constitution without transfer”. As to the relationship between contract and trust, von Bar and Clive, Principles, above note 5 at pp. 5700–5701.

14 Article X-1:205.

15 Although there is no specific disposition dealing with this, this seems to be implied.

16 Lupoi, M., “The Shapeless Trust” (1995) Trusts & Trustees 15CrossRefGoogle Scholar; J. Harris, The Hague Trusts Convention. Scope, Application and Preliminary Issues (Oxford 2002), pp. 111–116. This is, however, contested by Hayton, D., “The Developing European Dimension of Trust Law” (1999) 10 K.C.L.J. 48, 52–53Google Scholar. Agency and mandate contracts are dealt with in Book IV of the DCFR.

17 I shall use the term “truster” when referring to the DCFR and “settlor” when referring to common law and civil law trusts.

18 Article 1 of the Principles of European Trust Law reads: “(1) In a trust, a person called the ‘trustee’ owns assets segregated from his private patrimony and must deal with those assets (the ‘trust fund’) for the benefit of another person called the “beneficiary” or for the furtherance of a purpose”. See D.J. Hayton, S.C.J.J. Kortmann and H.L.E. Verhagen (eds.), Principles of European Trust Law (The Hague 1999).

19 See Articles X-1:202, X-3:103 and X-6:103(1).

20 As it is, for instance, the case in Québec. Article 1261 of the Québec Civil Code.

21 Article X-9:104.

22 Article X-6:104.

23 Article X-9:301.

24 Article X-1:205.

25 See below text after note 46.

26 Nolan, R., “Equitable Property” (2006) 122 L.Q.R. 232Google Scholar. For a new analysis of equitable property rights see B. McFarlane and R. Stevens, “The nature of equitable property” (2010) 4 Journal of Equity 1.

27 See Articles X-5:101, X-5:103, X-6:101, X-6:106, X-6:109, X-7:201, X-7:202.

28 X-6:101.

29 von Bar and Clive, Principles, above note 5 at p. 5692.

30 English law does not traditionally recognise the notion of a Protector, though they are quite common in offshore jurisdictions, where the office has been recognised by statute. See R. Ham, E. Campbell, M. Tennet and J. Hilliard, “Protectors”, in J. Glasson and G. Thomas (eds.), The International Trust (Bristol 2006), p. 193.

31 Art. 2 of the Hague Trusts Convention and Art. 1 of the Principles of European Trust Law.

32 Morice v. Bishop of Durham (1804) 9 Ves. Jr. 399, (1805) 10 Ves. Jr. 522; Re Astor's Settlement Trusts [1952] Ch. 534; Re Endacott [1960] Ch. 232.

33 von Bar and Clive, Principles, above note 5 at p. 5683.

34 Nothing is said as to the need for somebody with a corresponding proprietary right, which is another argument often raised against private purpose trusts in English law. See, in particular, P. Matthews, “From Obligation to Property, and Back Again? The Future of the Non-Charitable Purpose Trust”, in D. Hayton (ed.), Extending the Boundaries of Trusts and Similar Ring-Fenced Funds (The Hague-London-New York 2002), 205. For an analysis of the various arguments employed against the validity of private purpose trusts see G. Thomas, “Purpose Trusts”, in Glasson and Thomas, above note 30, 211 at p. 218.

35 Article X-3:102.

36 von Bar and Clive, Principles, above note 5, at p. 5708.

37 According to the drafters, an asset “will be regarded as transferable if it is capable of being vested in another, even if it cannot be vested in that person by the right-holder without a non-performance of an obligation owed to a third party”. von Bar and Clive, Principles, above note 5, at p. 5709.

38 Ibid. at p. 5710.

39 Article X-3:103(1).

40 Article X-3:201.

41 Article X-3:204.

42 Article X-1:202.

43 As defined in Articles X-6:103, X-6:108 and X-6:109.

44 Article X-7:202.

45 Article X-7:203.

46 Article VIII-5:202.

47 Article X-10:501.

48 S. van Erp, “DCFR and Property Law: the need for Consistency and Coherence”, in R. Schulze (ed.), Common Frame of Reference and Existing EC Contract Law, 2nd edn., (Munich 2009), 249 at p. 251.

49 See above text at notes 13–14.

50 There are different accounts as to what are the essential elements of the common law trust: compare M.J. De Waal, “Comparative Succession Law”, in M. Reimann and R. Zimmermann, The Oxford Handbook of Comparative Law (Oxford 2006), 1071 at pp. 1089–1090 with T. Honoré, “On Fitting Trusts into Civil Law Jurisdictions”, Oxford Legal Studies Research Paper No. 27/2008. See also Maurizio Lupoi, who lists different elements based on a definition of the trust in comparative terms: M. Lupoi, Trusts. A Comparative Study (Cambridge 2000), pp. 201 ff. and Waters, D, “The Institution of the Trust in Civil and Common Law” (1995) 252 Recueil des Cours 117, 119Google Scholar.

51 Saunders v. Vautier (1841) 4 Beav. 115. Such a right is not recognised in certain States of the USA. See Matthews, P., “The Comparative Importance of the Rule in Saunders v Vautier” (2006) 122 L.Q.R. 266Google Scholar and Getzler, J., “Transplantation and Mutation in Anglo-American Trust Law” (2009) 10 Theoretical Inquiries in Law 355CrossRefGoogle Scholar.

52 Re Rose [1952] Ch. 499.

53 [1971] A.C. 424.

54 However, s.199 of the Equality Act 2010 abolishes the presumption of advancement. To this date, it has not yet come into force.

55 [2003] 2 A.C. 709. Article X-2:301(5) states that if the trustee refuses, or there is no co-trustee who accepts the trust fund, the truster himself becomes the trustee. The origin of this provision may lie in Mallott v. Wilson [1903] 2 Ch. 494.

56 Pilcher v. Rawlins (1871) 7 Ch. App. 259.

57 Article X-10:401(4).

58 See above note 9.

59 The Perpetuities and Accumulations Act 2009, which came into force on 6 April 2010 and which supersedes the 1964 Act, introduces a single 125-year perpetuity period, which will always apply, though a shorter trust period may still be chosen.

60 See von Bar and Clive, Principles, above note 5, at p. 5709.

61 See above text after note 46.

62 Article X-2:103(1).

63 A difference is drawn in Article X-4:201 on the avoidance by the truster; in Article X-4:202 on the protection of trustees and third parties after avoidance; in Article X-9:103 which deals with the right of the truster to terminate a gratuitous trust; in Article X-9:301 on the transfer by juridical act of the right to benefit. See von Bar and Clive, Principles, above note 5, at p. 5698.

64 See, for instance, below at note 69.

65 In fact, commercial trusts seem to be gaining an increasing importance in England. Waters, D., “The Future of the Trust from a Worldwide Perspective” (2004) 11 Journal of International Trust and Corporate Planning 199Google Scholar; D. Hayton, “The Uses of Trusts in the Commercial Context”, in D. Hayton (ed.), Modern International Development in Trust Law (The Hague 1999), 145. As for the US, see J. Langbein, “The Secret Life of the Trust: the Trust as an Instrument of Commerce”, ibid, 169.

66 von Bar and Clive, Principles, above note 5, at p. 5690.

67 Article X-8:203.

68 Article X-9:201.

69 Article X-9:103 and Art. X-9:106.

70 This in itself would frequently defeat the object of using a trust in the first place. See Schmidt v. Rosewood Trust Ltd (Isle of Man) [2003] UKPC 26; [2003] 2 A.C. 709 at [34]–[35].

71 The use of the term “truster” aside, the absence of a limit to the duration of the DCFR trust may be ascribed to a Scottish influence.

72 This is, for instance, visible in the application to trusts of rules on contract law, in particular the rules on donation.

73 This term is employed by MacQueen, H.L., “The Common Frame of Reference in Europe” (2010) 25 Tulane European & Civil Law Forum 1, 18Google Scholar.

74 Except, perhaps, for existing private international law. See, for instance, the references to “trust” in the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Arts 5(6) and 23(4).

75 Communication from the Commission to the European Parliament and the Council – A more coherent European contract law, above note 1, para. 4.1.1, no. 63.

76 von Bar and Clive, Principles, above note 5, at para. 63.

77 See von Bar and Clive, Principles, above note 5, at p. 5680, where it is said that the trust is treated as an obligation sui generis (not a contractual one and also not a non-contractual liability for damages nor unjustified enrichment and benevolent intervention) that embraces testamentary as well as lifetime trusts.

78 von Bar and Clive, Principles, above note 5, at p. 5680.

79 Some common lawyers would position the trust in the context of property law, but many would not. See Hayton, D., “Developing the Obligation Characteristic of the Trust” (2001) 117 L.Q.R. 96Google Scholar; Parkinson, P., “Reconceptualising the Express Trust” [2002] C.L.J. 657Google Scholar; Contra see P. Matthews, “From Obligation to Property, and Back Again?”, above note 34; Id., “The New Trust: Obligations Without Rights?” in A.J. Oakley (ed.), Trends in Contemporary Trust Law (Oxford 1996) 1.

80 This seems to resemble an English automatic resulting trust, but the drafters do not employ that expression nor do they tell us what type of trust this is.

81 As said in von Bar and Clive, Principles, above note 5, at p. 5683.

82 Article X-2:102.

83 Article X-2:203. Article IV.H.–2:101 on the form requirements for donations states that: “A contract for the donation of goods is not valid unless the undertaking of the donor is in textual form on a durable medium signed by the donor.”

84 Article X-4:201.

85 See von Bar and Clive, Principles, above note 5, at p. 5712.

86 Re London Wine Company (Shippers) Ltd. (1986) Palmer's Co. Cas. 121; Re Goldcorp Exchange Ltd. [1995] 1 A.C. 74.

87 See, for instance, Hackney, J., “Charities and Public Benefit” (2008) 124 L.Q.R. 347Google Scholar.

88 von Bar and Clive, Principles, above note 5, at p. 5683.

89 Ibid.

90 Article III-3:702.

91 For an analysis of the different purposes of the DCFR see, in particular, Jansen, N. and Zimmermann, R., “‘European Civil Code in all but Name'. Discussing the Nature and Purposes of the Draft Common Frame of Reference” [2010] C.L.J. 98CrossRefGoogle Scholar.

92 For an examination of the different possibilities see Whittaker, “A Framework of Principle”, above note 4. According to Lord Mance, the true value of the project is to inform and instruct the future legislation and jurisprudence at the national and international level. Mance, Lord, “The Common Frame of Reference” (2010) ZeuP 457Google Scholar.

93 Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) Article 3(1). See Dicey, Collins and Morris, The Conflict of Laws 14th edn., (London 2006), ch. 32.

94 Recognition of Trusts Act 1987.

95 J. Harris, The Hague Trusts Convention, above note 16, 387.

96 The Convention has further been ratified by Australia, Canada, Liechtenstein, Monaco, San Marino and Switzerland.

97 German law of conflicts, for instance, does not have a specific provision covering trusts. See Arts. 3-46 EGBGB.

98 Green paper, above note 6, paras. 9–10.

99 That a European law of trusts is of potential interest to common law eyes is confirmed by the 12th report of the House of Lords, European Union Committee, European Contract Law: the Draft Common Frame of Reference – Report with Evidence (HL Paper 95, 10 June 2009) para. 21.

100 In this sense, see Hayton, Kortmann and Verhagen (eds.), Principles of European Trust Law, above note 18, at p. 5; D. Waters, “The Future of the Trust”, above note 65.

101 In this sense, D. Waters, “The Hague Trusts Convention twenty years on”, in M. Graziadei, U. Mattei and L. Smith (eds.), Commercial Trusts in European Private Law (Cambridge 2005), 56 at p. 85.

102 This is so even though elements of the law of trusts have always been present in Roman law based systems. On the topic see: P. Glenn, “The Historical Origins of the Trust”, in A. Mordechai Rabello (ed.), Aequitas and Equity: Equity in Civil Law and in Mixed Jurisdictions (Jerusalem 1997) 749, 776; Lupoi, M., “Trust and confidence” (2009) 125 L.Q.R. 253Google Scholar.

103 Lupoi, M., “The Civil Law Trust” (1999) 32 Vanderbilt Journal of Transnational Law 967, 968Google Scholar.

104 See Gretton, G. “Trusts without Equity” (2000) 49 I.C.L.Q. 599CrossRefGoogle Scholar; T. Honoré, “Trusts: The Inessentials” in J. Getzler, Rationalizing Property, Equity and Trusts (Oxford 2003), p. 1; M. Lupoi, Trusts, above note 50, ch. 5.

105 In this sense D. Hayton, “International Recognition of Trusts”, in Glasson and Thomas, The International Trust, above note 30, at p. 157.

106 COM(2009)154 final of 14 October 2009.

107 Interestingly, the UK has decided not to opt in to the proposed Regulation.

108 Article I.–1:101 excludes immovable property from the field of application of the DCFR. Hence, Book VIII of the DCFR only deals with movables.

109 How this will work in a registered title system is not addressed by the drafters.

110 § 900 of the Personen- und Gesellschaftsrecht of 1926.

111 Art. 8 of Law no 42 of 1 March 2010. Articles 2019 and 2020 of the French code civil also require the fiducie to be registered, albeit for different reasons.

112 Here the DCFR differs from the Hague Convention which at Article 12 recognises the possibility for the trustee to register trusts assets or their supporting documents.

113 Such as the power to review a decision of the trustee (Art. X-7:102), the power to appoint a trustee (Art. X-8:203) or to remove him (Art. X-8:402), or the power to vary the trust terms (Art. X-9:202).

114 T. Honoré, “On Fitting Trusts”, above note 50.

115 U. Mattei, “Should Europe Codify Trust?”, in P. Birks and A. Pretto (eds.), Themes in Comparative law. In Honour of Bernard Rudden (Oxford 2002), 235 at pp. 249–250.

116 A. Braun, “The Framing of a European Law of Trusts” paper presented at the Conference The Worlds of the Trust (La fiducie dans tous ses États, Montreal, 2010).

117 In this paper, harmonisation is intended as a process whereby “diverse elements are combined or adapted to each other so as to form a coherent whole while retaining their individuality” as suggested by Boodman, M., “The Myth of Harmonisation of Laws” (1991) 39 A.J.C.L. 699CrossRefGoogle Scholar, 702. Thus harmonisation is here understood as different from unification.

118 See R Schulze, “The Academic Draft of the CFR and the EC Contract Law”, in R. Schulze (ed.), Common Frame of Reference, above note 48, 3 at p. 11.

119 In this sense, van Erp, “DCFR and Property Law”, above note 48, at pp. 254–256.

120 Graziadei, Mattei and Smith (eds.), Commercial Trusts, above note 101, p. 556.

121 European Commission, Communication to the European Parliament and the Council – A more coherent European Contract Law: An Action Plan, above note 1, fn. 5.

122 U. Mattei, “Should Europe Codify Trust?”, above note 115, p. 235. According to Sjef Van Erp, “from a property law viewpoint, the DCFR seems to be more rooted in the German than in the French legal tradition”. See van Erp, “DCFR and Property Law”, above note 48.

123 Tito v. Waddell [1977] Ch. 106, 227 where Megarry V.C. spoke of “trust” as a “protean word”.

124 This, however, is admittedly not an easy task. See G. Gretton, “Up there in the Begriffshimmel?” paper presented at the Conference The Worlds of the Trust (La fiducie dans tous ses États, Montreal, 2010).

125 von Bar and Clive, Principles, above note 5, para. 48.

126 Ibid., para. 19. On this point, see Eidenmüller, H., Faust, F., Grigoleit, H.C., Jansen, N., Wagner, G. and Zimmermann, R., “N.” (2008) 28 O.J.L.S. 659Google Scholar. For an examination of the compatibility of cultural diversity and linguistic plurality with the DCFR, see, in particular, Sefton-Green, R., “Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality” (2008) 3 European Review of Contract Law 281, 290Google Scholar ff.

127 However, the DCFR attempts to harmonise the provisions on mandate and agency, which are dealt with in Book IV.

128 H. Schulte-Nölke, “Restatement – nicht Kodifikation. Arbeiten am ,,Gemeinsamen Referenzrahmen” für ein Europäisches Vertragsrecht”, in O. Remien (ed.), Schuldrechtsmodernisierung und Europäisches Vertragsrecht (Tübingen 2008), 25 at p. 26.

129 In this sense, Jansen and Zimmermann, “European civil code”, above note 91.

130 This term is employed by Graziadei, M., “Legal Transplants and the Frontiers of Legal Knowledge” (2009) 10 Theoretical Inquiries in Law 722, 732CrossRefGoogle Scholar.

131 Hayton, Kortmann and Verhagen (eds.), Principles of European Trust Law, above note 18.

132 Graziadei, Mattei and Smith (eds.), Commercial Trusts, above note 101.

133 Among those who have worked in this field are, for instance, M. De Waal, M. Graziadei, D. Hayton, T. Honoré, H. Kötz, J. Langbein, F.H. Lawson, M. Lupoi, P. Matthews, B. Rudden, D. Waters, W.A. Wilson.

134 As for the possible benefits of a European law of trusts see M.J. de Waal, “A European Law of Trusts?”, in A. Vaquer (ed.), European Private Law Beyond the Common Frame of Reference (Groningen 2008) 167.