Article: Book review Aertsen, vol. 9.2

Vol. 9.2 July 2005

D.W. Aertsen, De trust. Beschouwingen over invoering van de trust in het Nederlandse recht (Deventer: Kluwer, 2004), 370 pp. + index, ISBN 90 130 2007 0, EUR 48.56.

For civil lawyers, the law of trusts is one of the most difficult areas to understand. The trust can hardly be classified in civil law and the practical use of the trust in legal life is often beyond civil-law imagination. In fact, the trust is held to be one of the concepts in which civil law and common law are most diverse. In his dissertation, De trust: Beschouwingen over invoering van de trust in het Nederlandse recht, D.W. Aertsen attempts to describe the trust in civil-law terminology, considers whether the trust should be introduced into Dutch law and describes how he thinks this should be achieved. The book is a serious and successful attempt to clarify the difficult common-law concepts to – Dutch – civil lawyers.

The author first introduces his reader to the concept of trust in English law (chapter 2), and next explains the English express trust in Dutch legal terminology (chapter 3). He goes on to consider the reasons why the trust should be introduced into Dutch legislation (chapter 4) and suggests how trusts could be introduced (chapter 5).

The author’s choice to focus on English law seems evident, since most legal systems that recognise trusts found their trust law on English law. However, English law, with its complex system of law and equity, does not provide an easy basis. As a matter of fact, equity law and trust law are interrelated.[1] The recognition of the beneficiary’s interest and the need to bring an action to protect this interest was the main reason why equity came into being. From the 16^th century onwards, the beneficiary in a trust has been considered to have an equitable interest in the trust property.[2]

Remarkably enough, many legal systems in which the trust was introduced specifically refuse to recognise equity.[3] The recognition of a separate system of law aimed at correcting some of the undesired consequences of the main system is usually considered undesirable. These legal systems use different concepts to correct any strict and unfair application of their laws and therefore claim not to need equity.[4] The choice these legal systems make illustrates the difficulties of English trust law. Without equity, the trust is difficult to define and cannot function properly. Besides the enactment of trusts by consent, like express trusts, trusts are also created by operation of the law. The latter category includes, for example, mistaken payments (constructive trusts) and unjustified enrichment (resulting trusts).[5] The functions of resulting and constructive trusts – but also the remedies for the beneficiary, such as tracing – depend heavily on the workings of equity. Perhaps it is also for this reason that Aertsen limits his study to express trusts, which are less dependent on equity.[6]

Furthermore, the introduction of trusts into a legal system which does not recognise equity requires protection of the position of the beneficiary in a different way. Civil-law systems traditionally adhere to a strict separation between personal and property rights.[7] In fact, most private-law systems separate the law of obligations from the law of property. Therefore, introducing trusts into civil law requires a qualification of the rights of the beneficiary as either personal or property rights.

Because of this dogmatic approach, the qualification of the interest of the beneficiary is a very difficult issue.[8] First, if the trustee alienates the trust property in breach of trust, the beneficiary may bring an action to redress this. In civil-law terminology, this action would be personal and instituted against the trustee. However, the beneficiary can also follow the trust property and institute an action against the acquirer who was not a bona fide purchaser for value without notice.[9] Furthermore, the acquirer may be holding trust property he received on constructive trust for the beneficiary.[10] In civil-law dogmatic reasoning, the actions the beneficiary could bring under common law would be qualified as rights of a proprietary nature, since they take effect not only against the trustee, but also against third parties.

Nevertheless, Aertsen qualifies the interest of the beneficiary in Dutch law as personal.[11] In a civil-law system, hardly any other conclusion is possible. A civil-law system like the Dutch system does not recognise a separate system in which the beneficial interest is specifically recognised. Instead, the beneficial interest has to be characterised within the system of the law of obligations or the law of property. The beneficiary would be protected in the most efficient way if his right was considered a property right. The consequence of the choice for a property right would be that the right would take effect against not only the trustee, but also third parties. Furthermore, in the case of bankruptcy, the beneficial interest would take preference over other claims.[12]

However, Dutch law – like most civil-law systems – adheres to a uniform concept of ownership and a numerus clausus of property rights.[13] The system of property law in the Netherlands – like in other civil-law systems – does not allow parties to create their own rights and claims with property effect. The traditional opinion is that in order to create a new property right legislative interference is necessary; hence Aertsen included his fifth chapter in which he proposes trust legislation.[14] Unfortunately, midway through his study, the author already decided that the beneficial interest in Dutch law is a set of personal rights and claims and he does not enter into a consideration of the way in which the beneficial interest as a new property right would fit into the Dutch legal system.[15]

Aertsen does consider the relation between the trust and the Dutch bewind, a connection that is introduced by means of the South African Trust Property Control Act 1988 (TPCA 1988). This Act recognises two types of trust: one where the trustee is owner (classic trust) and one where the beneficiary is owner (bewind trust).[16] The bewind in Dutch law is a legal construction where, in specific situations, ownership and management powers are divided between two persons.[17] The difference with the trust is that in the case of bewind it is not the trustee but the beneficiary who is considered to have ownership of the assets.[18] Along the same lines as the Dutch bewind, in South African law ownership of the trust property may also belong to the beneficiary. However, in relation to these bewind trusts Aertsen jumps to the conclusion that trust and bewind can easily co-exist, but he is forced to admit that the bewind trust is overshadowed by the classic trust.[19] Unfortunately, there is not much research on why the bewind trust is less frequently used. However, in comparison to the English equivalent the classic South African trust is more flexible than the bewind trust. In a civil-law-like system such as South African law, where a choice needs to be made as to whether the trustee or the beneficiary will have ownership, it is more desirable that the trustee has ownership and thus the sole power to dispose of and manage the trust property. Ownership of the trust property will enable the trustee to exercise his or her management powers in the best possible way. The beneficiary will only have personal rights and claims, which may, as has happened in South Africa, be complemented by legislation. In a situation such as bewind, where the beneficiary has ownership of the trust property, the trustee will only have personal rights and claims, which would require complex solutions to safeguard efficient management of the trust property. The use and introduction of a bewind is therefore not necessarily the best solution.

If beneficial interest is a set of personal rights and claims, property interest in the trust property is necessarily with the trustee. This is the solution that legal systems such as South Africa (through its TPCA 1988), Scotland and the Netherlands Antilles found, and that is also applied in the Principles of European Trust Law. This is also the approach suggested by Aertsen.[20] In the systems mentioned, the trustee is the owner of the trust property and the beneficiary has a set of personal rights and claims. Specifically, the Principles of European Trust Law, drawn up by a group of international specialists for which the author was one of the secretaries, follow this compromising solution.[21] Considering that the Principles should be seen as a compromise, it is remarkable that Aertsen uses these Principles in his second chapter to underline his discussion of English law, which is, apart from that, very clear. English trust law is primarily based on case law, although there is important statutory law as well. It would have enhanced the value of the book if the author had referred to sources of case law instead of to the Principles of European Trust Law when dealing with English law.

Nevertheless, Aertsen has succeeded in rendering a clear description of English trust law, fitting it into the difficult private-law system of the Netherlands and making relevant suggestions as regards the introduction of the trust into the Dutch legal system. The use of comparative arguments based on both the mixed legal systems of Scotland and South Africa and the legislative trust created in the Netherlands Antilles influences his choices and enhances his arguments. His clear wording offers many civil lawyers the possibility of learning about the trust and of including it in their own studies or in the solutions to problems they face in practice.

Bram Akkermans,
Junior Researcher
European Property Law,
Maastricht University

Cite as: Bram Akkermans, Book review of D.W. Aertsen, De trust. Beschouwingen over invoering van de trust in het Nederlandse recht, vol 9.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (July 2005), <http://www.ejcl.org/92/review92.html>.

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Notes

^{^[1]}See, inter alia, J. Biancalana, ‘Medieval Uses’, in R. Helmholz and R. Zimmermann (eds.), Itinera Fiduciae: Trust and Treuhand in a Historical Perspective (Berlin: Duncker & Humblot, 1998), pp. 111-152, at p. 113.

^{^[2]}F.W. Maitland, Equity: A Course of Lectures, 3^rd edn. (Cambridge: Cambridge University Press, 1936), pp. 23ff.; D.E.C. Yale, Lord Nottingham’s Chancery Cases, vol. II (London: Selden Society, 1961), pp. 93-94.

^{^[3]}Lucas’ Trustee v. Ismail and Amod 1905 TS 239 (South Africa), Sharp v. Thomson 1995 SC 455 and Burnett’s Trustee v. Harvey Leighton Grainger and Another, 2004 SCLR 433 (Scotland); J.H.M. van Erp, ‘Civil and Common Property Law: Caveat Comparator – The Value of Legal Historical-Comparative Analysis’, European Review of Private Law, 3 (2003), 394-411, at pp. 407ff.

^{^[4]}E.g. the principle of good faith. See, inter alia, R. Zimmermann and S. Whittaker (eds.), Good Faith in European Contract Law (Cambridge: Cambridge University Press, 2000).

^{^[5]}Chase Manhattan Bank NA v. Israel-British Bank (London) Ltd., [1981] Ch. 105 and, although controversial, Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669, [1996] 2 All ER 961, 95 LGR 1.

^{^[6]}D.W. Aertsen, De trust: Beschouwingen over invoering van de trust in het Nederlandse recht (Deventer: Kluwer, 2004), p. 11.

^{^[7]}A.F.J. Thibaut, ‘Über dingliches und persönliches Recht’, in Versuche über einzelne Teile der Theorie des Rechts, 2. verbesserte Ausgabe (Aalen: Neudruck Scientia Verlag, [1817] 1970), pp. 23-66; F.K. von Savigny, System des heutigen römischen Rechts, 1 (Aalen: Scientia Verlag, 1981), para. 56, p. 367; and C.J. Zeben and J.W. Du Pon, Boek 5 – Zakelijke Rechten (Parlementaire Geschiedenis van het Nieuwe Burgerlijk Wetboek; Deventer: Kluwer, 1981). For Dutch law, see also E.B. Rank-Berenschot, Over de scheidslijn tussen goederen- en verbintenissenrecht (Deventer: Kluwer, 1992), p. 3.

^{^[8]}Against this approach, see, inter alia, S. Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-American Legal Reasoning (Cambridge: Cambridge University Press, 2003), pp. 172ff.

^{^[9]}Aertsen, De trust, p, 47.

^{^[10]}I.e., dishonest assistance in breach of trust; see, inter alia, Royal Brunei Airlines Sdn Bhd v. Tan, [1995] 2 AC 378, [1995] 3 All ER 97, [1995] 3 WLR 64, [1995] BCC 899.

^{^[11]}However, the trustee is awarded ownership; Aertsen, De trust, pp. 65, 88-89, 96-97.

^{^[12]}See Asser-Mijnsen-De Haan, Mr. C. Asser’s handleiding tot de beoefening van het Nederlands burgerlk recht – Goederenrecht 3 – I Algemeen goederenrecht, 12th edn. (Deventer: W.E.J. Tjeenk Willink, 2001), n. 30.

^{^[13]}Zeben and Du Pon, Boek 5 – Zakelijke Rechten, p. 3; Asser-Mijnsen-De Haan, Goederenrecht 3, n. 39.

^{^[14]}In some legal systems, it is also possible to recognise new property rights through court decisions. Cf. the discussion on the German Anwartschaftsrecht; see J. Baur and R. Stürner, Sachenrecht, 17. neubearbeite Auflage (München: C.H. Beck’sche Verlagsbuchhandlung, 1999), pp. 25ff.

^{^[15]}Aertsen, De trust, p. 47.

^{^[16]}Trust Property Control Act 1988, Act 57 of 1988, S. 1.

^{^[17]}Originally, the legislator intended to include a general type of bewind in the Civil Code (Title 3.6), but after postponement it has now become clear that there will not be such a general type; Aertsen, De trust, p. 72, n. 32.

^{^[18]}The term ‘ownership’ is very confusing in comparative property law. As far as English law is concerned, it would be advisable to use the term ‘interest’. However, South African law, with its Roman-Dutch foundations, uses a concept of ownership (dominium); see, inter alia, T. Honoré, ‘Ownership’, in A.G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961), pp. 107-147; T. Honoré, E. Cameron, M.J. De Waal, B. Wunsh, P. Solomon and E. Kahn, Honoré’s South African Law of Trusts, 5^th edn. (Lansdowne: JUTA Law, 2003), pp. 7-8.

^{^[19]}Aertsen, De trust, p. 203, nn. 39, 204; Honoré et al., Honoré’s South African Law of Trusts, p. 9, n. 42.

^{^[20]}Aertsen, De trust, pp. 88-89.

^{^[21]}Without equity, application of the uniform concept of ownership requires either the beneficiary or the trustee to have ownership; Aertsen, De trust, p. 14, n. 11.