Patrimony not Equity: The Trust in Scotland

Abstract

This chapter examines the importance of patrimony as an organising principle of trust in the absence of equity. The law of property in Scotland and other mixed jurisdictions is always civilian; like civil law countries, they do not have a separate system of equity, or acknowledge the distinction between legal and beneficial ownership; and yet all mixed systems have the trust. In addition to the common law trust, there is the civil law trust. Of the civil law trusts, a special place may be claimed for the Scottish trust, the oldest such trust by far and one of the most widely used in practice. The chapter first considers trusts in relation to contracts and real rights before discussing the two patrimonies of a trustee: a private patrimony and a trust patrimony. It also assesses the impact of a trustee's death on the integrity of patrimony, along with the rights of trustees and trust beneficiaries.

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