Re-exploring the nature of dual ownership in English trusts: a Scottish law perspective

Zhang, C. (2023) Re-exploring the nature of dual ownership in English trusts: a Scottish law perspective. Trusts and Trustees, 29(1), pp. 62-78. (doi: 10.1093/tandt/ttac113)

Abstract

Owing to the unique social and historical background, the ownership of trust assets of English trusts is divided into two parts, namely the ownership in common law, which is held by the trustee, and the ownership in equity which is held by the beneficiary. In consideration of the unified ownership principle in civil law jurisdiction, most scholars argued that there is no theoretical compatibility between the common law trust and civil law tradition. This article aims to re-explain the legal nature and economic functions of the dual ownership structure of English trusts by re-considering the origins of the trust in medieval England and comparing the practices of quasi-trust regimes in continental and mixed jurisdictions, and finally this article argues that the success of the Scottish trust in functioning as an equivalent asset management mechanism to the English trust may have provided an answer to the above paradox.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Zhang, Dr Chi
• Authors: Zhang, C.
• College/School: College of Social Sciences > School of Law
• Journal Name: Trusts and Trustees
• Publisher: Oxford University Press
• ISSN: 1363-1780
• ISSN (Online): 1752-2110
• Published Online: 12 November 2022
• Copyright Holders: Copyright © 2022 The Authors
• First Published: First published in Trusts and Trustees 29(1):62-78
• Publisher Policy: Reproduced under a Creative Commons License