Much ink has been spilt in attempts to describe the nature and structure
of trusts in the common law tradition. However, far from developing a
coherent and internally consistent understanding of trusts, such
attempts have caused a deep schism to be formed between obligatory and
proprietary theories of the trust.This has a polarising effect on the
academic discourse and stifles the further, conceptual development of
the law.
This book gives a full account of the irreducible core of the trust by
applying an analytical framework of fundamental legal conceptions and
relations derived from the American theorist, Wesley N. Hohfeld. By
setting aside the corpus of trusts law that is either 'default' (meaning
that, in the absence of some contrary stipulation in the trust deed, the
particular law would apply) or is left to the subjective expression of a
settlor in creating a trust. This leaves only the mandatory rules of
trusts law. From this, it ought to be possible to redefine trusts by
identifying the legal relations that must exist in every private express
trust (collectively, 'the irreducible core of the trust') irrespective
of contrary drafting in a trust instrument. In doing so, a skeleton of
legal relations will be exposed to exist in all trusts, which are
motivated by two correlated themes of accountability and enforceability.
