Volume 10, Number 2 July 2009 Article 3
HISTORIES OF LEGAL TRANSPLANTATIONS
Transplantation and Mutation in
Theoretical Inquiries in Law
Transplantation and Mutation
in Anglo-American TrustLaw
In the early nineteenth century, authoritative treatise writers such
as James Kent and Joseph Story represented Anglo-American trustlaw as a seamless web. But the transplantation of trustlaw from
England to America was not a simple process of adherence. Rather,
American courts and legislatures came to discard
/her spouse): the beneficiary’s interests were protected even in these circumstances. After the abolition of the dual system of courts (Common Law and Equity) with the Judicature Acts of 1873–1875, the rules elaborated by the Court of Chancery continue to be applied in England by today’s Courts. Within the English legal system, trustlaw evolved to the point that it now encompasses multiple types of trusts. One such trust, for example, is the purpose trust: it has no beneficiaries and the trustee must satisfy a specific purpose, as defined by the settlor. Another type of
reaching its welfare potential?
This article argues that recent reforms to Japan’s trustlaw regime have not fully exploited the
potential of the trust in an ageing society. It argues that the commercial emphasis of the reforms
has intangible ramifications for the concept of the trust in Japan that render the trust of questionable
suitability for welfare oriented applications. The article also explores the potential of the courts to
rescue the welfare role of the trust, in part by developing doctrine responsively to a given trust
the particulars of trustlaw, because they are relying on a merely illustrative, folk understanding of trusts or fiduciarity. The other is that there is no clear reason for such theorists to concern themselves with the particulars of trustlaw because even when they do make substantive reference to the trust model, they almost always now do so by reference to fiduciarity rather than trust. It is surely true that theorists who mention, in passing, the resemblance or relevance of trusts to parent-child relationships tend to invoke the concept illustratively rather
Basic Issues of Private Law Codification in
In this paper I approach trustlaw from the perspective of the European legal system consid-
ering whether or not to codify this area of the law. My hope is that this practical focus can bring
some better understanding of the nature of trustlaw. I try moreover to move a step forward in
tackling some of the basic questions that should be on the agenda of European private law today.
BASIC ISSUES OF PRIVATE LAW CODIFICATION IN EUROPE: TRUST.