a thesis - Institute of Advanced Legal Studies

8 TRUSTS IN GENERAL.
himself be, and often is, the trustee (see Lewin, Trusts^ 10th
ed. 12), and it is meaningless to speak of a person reposing a
confidence in himself.
Mr. Underbill (Trusts and Trustees, 4th ed. 5), however, notes
two distinctions of the kind sought. These are:—
(1) That a trust, no matter how created, can be enforced
against the trustee apart altogether from any consideration being
given him, while a contract, except when under seal, cannot, as a
rule, be enforced against the promisor unless such consideration be
shown.
(2) That a contract cannot be enforced by anyone who is not
a party to it, while it is one of the most conspicuous characteristics
of a trust that it can always be enforced by the person for whose
benefit it was declared or created, although he is generally no party
to its creation. (Price v. Easton (1833), 4 B. & Ad. 433 ; Ticeddk
v. Atkinson (1861), 1 B. & S. 393.)
The first, however, is not in itself sufficient for the purpose, for
it is just that group of contracts which most resemble trusts (viz.,
bailments) which forms the exceptional class of simple contracts
that can be enforced without proof of consideration. But in (2)
bailments fall into line with all other contracts and differ from
trusts, so that this seems to be a true point of distinction between
every trust and every contract. If, then, the definition is so framed
as to cover it, it would seem to sufficiently differentiate trust from
contract.
Having settled the dividing line between trusts and contracts,
the other characteristics exhibited by the former may be summarized
thus :—
First, the word trust in common speech no doubt imports confidence,
and at first sight it might be thought that the legal
description of a trust should necessarily have reference to this fact;
but it has already been shown that, however it may have been
formerly, the notion of confidence is not now essential to what
lawyers mean by a trust. (Lewin, Trusts, 10th ed. 7, 12.) For
trust also connotes obligation, and an obligation which, though at
one time merely moral, has long since become legal. When the
obligation was merely moral it was natural that the notion of confidence
involved in a trust should be uppermost in men's minds,
and it is not surprising to find that the old writers generally made
it the pivot of their ideas (of. the older definitions set out above),
but now that all trusts have for so long been enforced by the