Party Autonomy in International Property Law - Peace Palace Library

4. Party Autonomy and Property Rights
Raising our gaze to other legal systems there are two ways in which the
common law position in relation to security is relatively unusual. In relation
to non-possessory security within civilian legal systems it is the
mortgage, not the charge, which is (relatively) unusual. So, although German
law recognises the transfer of title for security purposes (Sicherungsübereignung)
this is not the usual form non-possessory security takes. We
can see therefore that other legal systems have also moved beyond the
Roman law division between rights against persons (in personam) and
rights against things (in rem) and have also embraced rights to, or over,
other rights.
However, other legal systems have not generally adopted this idea outside
of the context of non-possessory security. 22 So, trusts of the kind we have
in the common law world are generally unknown. Instead, the concept of
a separate fund or patrimony has been employed. The definition in Book
X of the Draft Common Frame of Reference is instructive because of how
far it departs from the concept of a trust in the common law world. So,
the definition commences, unobjectionably (Article 1:201):
‘A trust is a legal relationship in which a trustee is obliged to administer
or dispose of one or more assets (the trust fund) in accordance
with the terms governing the relationship (trust terms) to benefit a
beneficiary or advance public benefit purposes.’
But then continues (Article 1:202(1)):
‘the trust fund is to be regarded as a patrimony distinct from the personal
patrimony of the trustee and any other patrimonies vested in or
managed by the trustee.’
Within the common law world, this is flat wrong. The subject matter of
a separate fund or patrimony is not just rights but duties and liabilities
as well. So the administrator of the estate of someone who has died does
not owe the obligations of the estate, the estate does. On the DCFR view
the trust, and not the trustee, may be the subject of a duty and may itself
be sued. 23 In English law a trust does not involve a separate fund or patri-
22
See the very important work by G. Gretton, ‘Ownership and its Objects’,
RabelsZ 71 (2007), 802.
23
This is expressly contemplated by the Brussels I Regulation (see fn. 2).
Robert Stevens
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