David Foster, University College London Faculty of Laws, has posted Historical Conceptions of the Express Trust, c 1600-1900, which is forthcoming in Philosophical Foundations of the Law of Trusts, ed. Degeling, Simone and Hudson, Jessica and Samet, Irit, a volume in the Oxford University Press's series, Philosophical Foundations of Law,
This chapter discusses the historical and analytical conceptions of the express trust in the period c 1600 – 1900. Particular emphasis is placed upon the historical conception of the trust as a ‘confidence annexed in privity’ and the slow reification of the beneficiary’s right under a trust in the case law and treatise literature of the period. This aspect of the trust’s history is explored through the development of rules governing the exigibility and enforceability of the beneficiary’s right and provides historical context to the more analytical treatments of the trust in the mid-to-late nineteenth century. The chapter concludes with a consideration of the significance of the school of analytical jurisprudence in shaping modern conceptions of the trust – most notably by applying the language of rights in rem and rights in personam to equitable rights.
--Dan Ernst
