The Economic Structure of Trusts: Towards a Property-based Approach

Hardcover | March 3, 2011

byM. W. Lau

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This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and economics community until recently. Borrowing theories and doctrines from corporate law andeconomics, scholars have variously analysed and described the trust as a tripartite contract, a nexus of contracts, and even a legal entity. These obligational approaches overlook the unique features of trusts for which corporate legal theories have no explanation. Most importantly, they fail toaccount for the nature of the beneficiary's interest in the trust property. This book presents an original analysis of the common law of trusts, arguing that trust law is about the trust property and the principal parties' relationships with it. At the same time it questions recent trends in trust law, especially those in offshore jurisdictions. Exotic developments such asnon-charitable purpose trusts, settlor-retention of wide powers, and generous trustee exemption clauses have become the new normal and, coincidentally, draw analytical support from obligational accounts. It develops an analysis of trusts from a proprietary perspective, and applies the property-basedapproach to the economic analysis of trusts - explaining the economic benefits of trusts as an extension of the law of property. It also demonstrates how, once trusts are properly understood as property, it becomes obvious why these novel developments can only be for the worse, and should bereversed.

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This book provides an economic account of why trusts exist and how trust law should be shaped. The trust is a key legal institution in the common law world but it has been neglected by the law and economics community until recently. Borrowing theories and doctrines from corporate law andeconomics, scholars have variously analysed and ...

M. W. Lau received his LLB degree from King's College London, his LLM degree from London School of Economics and Political Science, and his PhD degree from King's College London. His doctoral research focused on the economic functions of trusts and trust law. He is a registered attorney in the State of New York and a CFA (Chartered Fi...

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Format:HardcoverDimensions:230 pages, 9.21 × 6.14 × 0.1 inPublished:March 3, 2011Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199602409

ISBN - 13:9780199602407

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Table of Contents

IntroductionPart I: Trusts as Contracts1. The Trust Deal and the Rhetoric of Contracts2. Agency Costs and the Nexus of ContractsPart II: Trusts as Firms3. Trusts as Entities4. Trusts as Economic Firms5. The Function of Trusts in Business and CommercePart III: Trusts as Property6. The Decline of Property and Trust7. Reconceptualising Property and Funds in Law and Economics8. The Economic Structure of Trusts9. The Boundaries of the Trust ConceptConclusion: The Relationship Between Property and TrustsBibliography