Postgraduate Course: Trusts across the Common Law World (LAWS11405)
|School||School of Law
||College||College of Humanities and Social Science
|Credit level (Normal year taken)||SCQF Level 11 (Postgraduate)
||Availability||Not available to visiting students
|Summary||This course investigates the distinctive analyses of trust law and asset management that originated in the Equity jurisdiction of the English Court of Chancery. These now extend beyond England to the major common law jurisdictions of the world, and the many 'offshore' trust jurisdictions of the Caribbean and the Channel Islands.
The course concentrates on selected topics in common law trusts, viewed from a larger comparative perspective. The topics are chosen to illustrate distinctive features of trust administration in common law systems and to complement, in a specialised way, the LLM course on Comparative and International Trust Law. The course relies heavily on primary source material. Students taking the course would want to be confident about using the case law and statute law of the common law tradition.
The course begins with the common law explanation for the divided trustee patrimony by the recognition of equitable property rights in the trust assets. It considers the significance of recognising that beneficiaries' rights have both a personal and a proprietary dimension. These are relevant to considering how trusts can be used to distribute the economic benefit of trust assets among beneficiaries and shield the trust assets from the claims of creditors. This leads to a consideration of contractarian and property-based explanations of trusteeship, and the relationship between the default rules of the general law and express drafting in trust documents.
The course considers how beneficiaries and protectors may control the way trustees exercise their powers, and the extent to which the settlors who create trusts may reserve powers of control over trustees once they have transferred assets to them. This leads to a consideration of shams and the other ways that creditors of trustees or beneficiaries may 'pierce the veil' of fiduciary ownership under trusts. The course ends with some of the distinctive claims that arise on the breach of a common law trust, including personal claims against third party accessories to a breach of trust and proprietary tracing claims for the recovery of trust assets.
Provisional Teaching Programme:
Weeks 1 & 2: The basics of trusts and trust management in common law jurisdictions. The variety of trusts.
Week 3: Dualist conceptions of legal and equitable rights.
Week 4: Equitable property under trusts, the allocation of beneficial entitlements and the relevance of contractarian perspectives on trusteeship.
Week 5: Trust patrimonies and the legal structures of asset segregation under common law trusts.
Week 6: Beneficiary control over trustees by access to trust information.
Week 7: Limitations on settlor control over trusts: perpetuities and winding-up by beneficiaries.
Week 8: Shams and piercing the veil of fiduciary ownership.
Weeks 9 & 10: Claims against third party accessories to a breach of trust. Proprietary claims and asset recovery.
Entry Requirements (not applicable to Visiting Students)
||Other requirements|| None
Course Delivery Information
|Academic year 2018/19, Not available to visiting students (SS1)
|Learning and Teaching activities (Further Info)
Seminar/Tutorial Hours 20,
Programme Level Learning and Teaching Hours 4,
Directed Learning and Independent Learning Hours
|Assessment (Further Info)
|Additional Information (Assessment)
||Students will each be allocated one formative essay topic throughout the year, drawn from seminar topics within the course. It will be marked and returned to them in time for the seminar to which it relates.«br /»
100% coursework consisting of an answer to a single essay question (5000 words) which aims to draw together student¿s understanding of the material across the whole course.
|No Exam Information
On completion of this course, the student will be able to:
- A critical understanding of the distinctive role of equity in shaping the analysis of trusts in common law systems.
- A detailed knowledge of the distinctive contribution of equitable doctrines to asset partitioning, beneficiary control, trust-breaking and asset recovery under the variety of trusts found throughout the common law world.
Hayton, Law of Trusts (4th ed 2003)
Maitland, Equity, 2nd ed (1936)
The following are generally relevant reference works and some main articles:
Birks and Pretto (eds), Breach of Trust (2002)
Hansmann & Kraakman, ¿The Essential Role of Organizational Law¿ (2000) 110 Yale LJ 387
Hayton et al, Underhill and Hayton, Law of Trusts and Trustees (19th ed 2016)
Langbein, ¿The Contractarian Basis of the Law of Trusts¿ (1995) Yale LJ 625
McGhee, (ed), Snell¿s Equity, 33rd ed (2015)
Nolan, ¿Equitable Property¿ (2006) 112 Law Quarterly Review 232
Oakley (ed), Trends in Contemporary Trust Law (1996)
Panico, International Trust Laws, 2nd ed (2017)
Tucker et al, Lewin on Trusts, 19th ed (2016)
Trust Law Committee (England and Wales), Rights of Creditors Against Trustees and Trust Funds (Trust Law Committee, 1997)
|Graduate Attributes and Skills
||1. Familiarity with reading primary case law and statutory sources in the common law tradition, and the ability to cont set them in the context of specialist secondary literature.
2. Autonomous engagement with the fine detail of primary common law sources and the ability to think creatively about their application to uncertain situations.
3. The ability to formulate considered questions, to articulate connected explanations, and to write with a high degree of conceptual precision.
4. Confidence in handling and discussing complex legal materials according to the common law method.
5. Sophisticated use of primary materials written in technical English, and the ability to articulate their meaning both orally and in writing.
|Keywords||trust law,asset management,Equity jurisdiction,common law jurisdiction
|Course organiser||Dr David Fox
Tel: (0131 6)50 2054
|Course secretary||Mr David Morris
Tel: (0131 6)50 2010