This book provides an economic account of why trusts exist and how
trust law should be shaped. The trust is a key legal institution in
the common law world but it has been neglected by the law and
economics community until recently. Borrowing theories and
doctrines from corporate law and economics, scholars have variously
analyzed and described the trust as a tripartite contract, a nexus
of contracts, and even a legal entity. These obligational
approaches overlook the unique features of trusts for which
corporate legal theories have no explanation. Most importantly,
they fail to account for the nature of the beneficiary's interest
in the trust property.
This book presents an original analysis of the common law of
trusts, arguing that trust law is about the trust property and the
principal parties' relationships with it. At the same time it
questions recent trends in trust law, especially those in offshore
jurisdictions. Exotic developments such as non-charitable purpose
trusts, settlor-retention of wide powers, and generous trustee
exemption clauses have become the new normal and, coincidentally,
draw analytical support from obligational accounts. It develops an
analysis of trusts from a proprietary perspective, and applies the
property-based approach to the economic analysis of trusts -
explaining the economic benefits of trusts as an extension of the
law of property. It also demonstrates how, once trusts are properly
understood as property, it becomes obvious why these novel
developments can only be for the worse, and should be reversed.
General
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