The Trust Deal and the Rhetoric of Contracts

M. W. Lau

in The Economic Structure of Trusts

Published in print January 2011 | ISBN: 9780199602407
Published online May 2011 | e-ISBN: 9780191725203 | DOI:
The Trust Deal and the Rhetoric of Contracts

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This chapter examines John Langbein's contractarian account of trusts. It outlines Langbein's arguments for calling trusts contracts and his implications for treating trusts as contracts. The chapter then lists out the numerous differences between trusts and contracts and argues that trusts are not contracts. It then criticizes the application of theories of corporations and contracts to trusts, arguing that trusts are doctrinally very different from corporations and contracts. It draws on the ‘trust deal’ that Langbein describes and observes that the contractification of trusts, especially in offshore jurisdictions, contributes to the ‘trust deal syndrome’, where the trust becomes essentially a deal between the settlor and the trustee, to the exclusion of the beneficiary. Finally, it questions the conceptual and practical difficulties of granting the settlor standing to enforce the trust, as Langbein proposed.

Keywords: John Langbein; contracts; corporations; trust deal syndrome; settlor standing to enforce

Chapter.  6447 words. 

Subjects: Trusts Law

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