LAW AND EQUITY: A FALSE START

The opening words of William F Fratcher's volume on Trust in the International Encyclopaedia of Comparative Law are these:

This is a traditional definition. The trust, we are told, is English in origin, and its central feature is the division of ownership between trustee and beneficiary. At those words a lawyer from a civil law system is likely to be impressed but also discouraged: impressed, because the edifice of thought on which the English trust is based commands respect and admiration; discouraged, because a device which depends on a division of dominium into legal and equitable ownership is not only unsuitable for transplantation to civilian soil: it is barely comprehensible.

Trust law need not be like this. Indeed the argument of this chapter is that trust law is not like this. Even in English law the legal/equitable duality may no longer be the most important characteristic of the trust. But in any event trusts are not confined to English law, or to common law systems based on that law. Scotland, a mixed jurisdiction, has known the trust since at least the seventeenth century. In other mixed jurisdictions, notably South Africa, Quebec and Sri Lanka, trusts began to appear in the nineteenth century, with Louisiana following after the First World War. The law of property in mixed legal systems 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.

Where mixed legal systems led, the civil law world in due course began to follow. Most of the early development was in Latin America – in Colombia (1923), Panama (1925), Chile (1925), Mexico (1926), Bolivia (1928), Peru (1931), Costa Rica (1936), Venezuela (1940), Nicaragua (1940), Guatemala (1946), Ecuador (1948) and Honduras (1950). In the civilian parts of Asia only Japan adopted the trust, in 1922, and the institution was largely ignored in continental Europe with the exception of tiny Liechtenstein (1926).

PATTERNS OF SIMILARITY AND DIFFERENCE

Introduction

There is much that is similar or the same in the law of praedial servitudes in Scotland and Louisiana, but there are also significant points of difference. These rather general matters are the subject of part A of this chapter, which seeks to give an overview of the law and to set that law in some kind of historical context. To be properly useful, however, a comparison must also descend to the particular; and while there are many aspects of servitudes where a micro-comparison between the laws of Scotland and Louisiana would yield interesting results, there seems a special value in exploring areas where the two systems have produced different solutions to similar problems. Elsewhere in this work Roderick Paisley contributes a study of the extinction of servitudes by prescription. In the present chapter my micro-topic is gap-filling. How is the law to provide where parties have failed to provide for themselves? Even this subject is quite a large one and it will only be possible to cover two specific aspects. One is the extent to which a servitude carries with it rights not mentioned in the juridical act which brought the servitude into being. The other is the circumstances under which the law will take the radical step of creating a servitude which the parties themselves have done nothing to bring about. These topics are explored in parts B and C respectively. Finally, in part D an attempt is made to draw comparative conclusions of a more general nature.