European Review of Private Law

Volume 24 (2016)

Volume 24 (2016) / Issue 6

William Swadling, 'Trusts and Ownership: A Common Law Perspective' (2016) 24 European Review of Private Law, Issue 6, pp. 951–972

Abstract

In the trust institution introduced by the new Czech Civil Code, ‘ownership’ of trust ‘property’ is vested in no-one. What motivates this provision seems to be the view that the common law trust involves a division of ownership, but that such is prohibited in Czech law generally. The purpose of this article is to demonstrate that the idea of the common law trust involving a division of ownership is false. Indeed, English law does not even have a concept of ownership. It instead deals with rights, but even so, these rights are not split when held on trust. The question is how, if at all, these insights can help us understand the newly introduced Czech trust. The conclusion which is reached is that when the Czech Civil Code provides that the trust property is owned by no-one, it simply means that it is not held beneficially by anyone. The property is not, as might seem at first sight, res nullius.

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ISSN: 0928-9801
ID: ERPL2016058