Norms prohibiting conflicts of interest apply in private fiduciary relationships and also to many public office holders. Whether or not such relationships are founded on trust, such norms can cultivate trust towards those holding governance authority, whether in interpersonal, civic or political relationships. In legal and philosophical discourse, however, conflicts of interest are rarely carefully defined. It has become a commonplace that ‘not every breach of duty by a fiduciary is a breach of fiduciary duty’. We must now go on to realize that ‘not every improper action by one who must avoid conflicts of interest is a conflict of interest’. A conflict of interest arises when duty-bound judgment is exercised in the presence of a conflicting interest. There can be conflicts that are not conflicts of interest; and there can be potential conflicts as well as actual ones. The simple misuse of power is not itself conflict of interest; on the contrary, it is the problem that the rules that forbid acting in a conflict situation aim to avoid. Bias is not identical with conflict of interest, although some kinds of bias arise from conflicts. Unauthorized profits are none of the above. They represent a different dimension of the relationship: not the supervision of powers, but the simple fact that when acting for another, one may not extract benefits for oneself. The rules about conflicts can foster trust in proper decision-making, while the rule against unauthorized profits can foster trust in the proper separation between a person’s private and official actions.

INTRODUCTION

It is a great pleasure to be here this evening, to give this twelfth annual W A Wilson Memorial Lecture. More than that, it is a genuine honour to be here, at this great law faculty in this great city, to give a lecture in memory of a great jurist and a great teacher. Unlike many of you, I did not know Bill Wilson. But I have gleaned a sense of the breadth of his scholarly interests, and I think also of his character, from having read his published work, and in particular from having read the book of essays created in his memory in 1996. He is known, of course, for many contributions in many fields during a long career. One of his interests was the law of trusts, and the Scots law of trusts will be a starting point for my lecture this evening.

After tracing some recent developments in our understanding of the juridical nature of the trust in Scots law, my goal will be to show how the Scottish trust is – and, how it is not – found in the common law. First, how it is not: the trust of the common law tradition cannot be understood according to the principles that underlie the trust of Scotland. But then, how it is: the common law does have an institution that corresponds almost exactly to the Scottish trust. This institution is the estate of a deceased person. Common lawyers know that their estate is different from their trust, although I will suggest that they are not entirely certain how or why it is different. I will argue that the Scottish trust sheds light on this puzzle, and, along with a dose of legal history, helps us to understand the ubiquitous presence of Scottish trusts in the common law. I will go on to discuss some recent developments in trusts in the common law world, which show that there may be more Scottish trusts in the common law, and that there may be still more before very long. Finally, I will conclude by asking whether the common law tradition has or has not reason to be concerned by these developments.

INTRODUCTION

The trust is one of the characteristic features of the common law tradition, but it is not confined to the common law world. An established law of trusts, combined with a civilian understanding of property law, is found in a number of jurisdictions, including both mixed jurisdictions and pure civil law systems. It is clearly possible to have “trusts without Equity”. In this paper, I will attempt to show that the way in which these jurisdictions understand the trust can help common lawyers to understand better their own trust institution. This often happens when we look at our law “outside- in”; that is, when we try to see it with the eyes of others.

The main part of this paper is devoted to asking whether the common law trust can be understood as a patrimony in the civilian sense. Contrary to the position taken by the French jurist Pierre Lepaulle, I show that it cannot. The reasons why it cannot be so understood require us to take careful note of several features of the common law trust that are not always noticed even by common lawyers. The essence of the common law trust lies not in any division of ownership of the trust property; this is a metaphor that is as likely to confuse as it is to enlighten. Rather it lies in the fact that the trust beneficiaries hold rights in the rights that the trustee holds as trust property. In the conclusion, I relate the trust institution to the idea of legal personality. The common law trust is not a legal person; I argue that it would be a mistake for any legal system to conceptualise the trust as a legal person, since the result will only be to eliminate the trust as a fundamental legal institution.

IS THE COMMON LAW TRUST A PATRIMONY?

Lepaulle's theory

One of the most famous outside-in looks at the common law trust was that of Pierre Lepaulle. He concluded that the common law trust could best be understood, in civilian terms, as a patrimony affected to a destination or purpose.

INTRODUCING THE TRANSLATION

The project

We were honoured when Remus Valsan invited us to translate into English this important text by Pierre Lepaulle, for inclusion in the present volume. The Crépeau Centre has a tradition of translating foundational texts of the French civilian tradition. The goal is to make these texts available to an English readership, while preserving the civilian character of the original. But working in civil law English, for a common law and civil law audience, is not an easy enterprise; both readerships might feel a little uneasy with certain choices made. Translators, like trustees, exercise judgment on behalf of another; they do not have the luxury of being faced with only one correct course of action.

In translating Lepaulle and his vision of the common law trust as an affected patrimony, we chose simply to appropriate Lepaulle. The exercise involves translation, but is first and foremost a legal enterprise. Common law, civil law, civil law in English, and comparative law are all at play in this text, involving both our vision of the trust today and Lepaulle's understanding of both the common law and the civil law of his time. What is fascinating and essential to underline, however, is how this kind of work has a reflexive impact not only on the notions of trust and patrimony but also on civil law in French, and on private law more generally, including the common law.

The author

An obituary in the Bulletin de la société de législation comparée provides some information about Lepaulle's life. He was born in 1893 and studied philosophy and law before being called into military service in 1913. He applied for a scholarship to study in the US near the end of the war, and learned of his success a year later. He departed in 1919, a week after being released from service. He spent most of his time at Harvard, where he earned the SJD, and returned to France in 1923, where he completed his French doctorate in Paris. He must have made a strong impression at Harvard; decades later, he contributed to collections of essays published in honour of Austin Scott and Roscoe Pound. In Paris, he practised as an advocate over a lengthy career, during which he also taught foreign and comparative law.