Insights

Introduction

The subject of this article needs careful explanation on the conceptual approach at the start. We could analyse the subject of absorption of trusts in any legal system, which does not cater for them, but the subject is infinitely more challenging if we consider how this happens when the legal system is a Civil law system or a mixed legal system. It is easy to appreciate that with the antagonistic baggage historically accumulated towards trusts in the Civil law world, analysing absorption into purely civil law systems, throws up evidence of resistance and suspicion. The mixed legal systems, on the other hand, provide extensive material worth observing as there is more openness to the institute and a tried and tested model for absorption of common law on a wider front. Absorption in these systems has happened very often over a period of 250 years, reflecting the expansion of the British Empire until its sunset in the post World War II era.

It is assumed that a mixed legal system is originally a Roman-Civil law system which then absorbs aspects of English common law as part of its structure. The reason for this is historical in that trusts, called fiducia, arise in early Roman law as a mode of transfer but then disappear in classical Roman law , only to re-emerge in English law in the late Middle Ages. As English law is the later version it is natural that it fills the vacuum which started to be felt in the older system.

The process goes beyond mere influence by one system of law on the other in the development of a rule or set of rules within a national legal system. Absorption of parts of one system into another means that potential policy clashes need to be rationalized, not in a specific context but generally. It is well known that there are major policy differences between the two world legal systems, especially on aspects of trusts, which are sharp and specific enough to articulate easily.

Of interest to this analysis are cases where the incorporation of the trust into the legal system of a country has had impacts on various other parts of the legal system which bear a certain amount of generalized relevance and which have been addressed legislatively or judicially.

We need to see how the absorbing legal system addresses these impacts. In some future review we can go into very specific detail and judge whether the way they have done this is positive or negative and from what perspective. In this contribution the review is necessarily high level.

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