9. Constructive trusts

2018 ◽  
Author(s):  
Robert Pearce ◽  
Warren Barr
Keyword(s):  
Main Category ◽  
Beneficial Ownership ◽  
The Law

This chapter turns to constructive trusts, the second main category in informal trusts. At its simplest, the term ‘constructive trust’ describes the circumstances in which property is subjected to a trust by operation of law. Unlike an expressly declared trust, a constructive trust does not come into being solely in consequence of the express intention of a settlor. Unlike automatic resulting trusts, it does not fill gaps in beneficial ownership. Like presumed resulting trusts, intention can form an important element in its genesis. As such, a constructive trust is a trust which the law imposes on the trustee by reason of their unconscionable conduct.

Patrimony not Equity: The Trust in Scotland

2015 ◽  
Author(s):  
Kenneth G C Reid
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Special Place ◽  
Beneficial Ownership ◽  
Separate System ◽  
The Common ◽  
The Law ◽  
The Impact ◽  
Mixed Systems

This chapter examines the importance of patrimony as an organising principle of trust in the absence of equity. The law of property in Scotland and other mixed jurisdictions 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. In addition to the common law trust, there is the civil law trust. Of the civil law trusts, a special place may be claimed for the Scottish trust, the oldest such trust by far and one of the most widely used in practice. The chapter first considers trusts in relation to contracts and real rights before discussing the two patrimonies of a trustee: a private patrimony and a trust patrimony. It also assesses the impact of a trustee's death on the integrity of patrimony, along with the rights of trustees and trust beneficiaries.

scholarly journals BENEFICIAL OWNERSHIP AND TRUST: EXPERIENCE OF CIVIL LAW COUNTRIES

2017 ◽  
pp. 0-0
Author(s):  
Анна Мазаева ◽  
Anna Mazaeva
Keyword(s):  
Asset Management ◽  
Civil Law ◽  
Hague Convention ◽  
Trust Model ◽  
European Countries ◽  
Constant Change ◽  
Beneficial Ownership ◽  
The Law ◽  
The Hague Convention ◽  
Law Of Succession

The increasing complexity and internationalization of economic processes, escalation of risks of solo asset management, constant change of market conditions, emergence of new means of earning income from property demand from the owner of any valuable assets to find a professional who can effectively manage an estate. Lack of clearness in legislative regulation in the Russian Federation stimulates the title holders to use international law institutes such as trust, rather than national asset management. The author underlines unrecoverable problems occurring during attempts of implementation of trusts into the legislation of European countries, gives examples of alternative institutes of an asset management. The article describes problems occurring because of trust implementation into civil law. The author makes the comparative analysis of the “contract” model and the “trust” model of asset management and gives several examples of successful application of trust-like institutions in civil law countries, such as: Institution of precede and subsequent successors (Vorerbe and Nacherbe); Dauertestamentsvollstrecker and Treuhand in the law of succession and corporate law of Germany; la fiducie in civil law of France. The article contains a brief overview of the Hague Convention on the Law Applicable to Trusts and on their Recognition 1985 as an example of harmonization of common understanding of trust among European countries and the resolution of the problem of legal qualification of trust relations by civil courts.

Ethical Challenges: Less About Moral Wrongdoing and More About Communication Breakdown

2015 ◽  
Vol 20 (3) ◽  
pp. 72-84 ◽  
Author(s):  
Paula Leslie ◽  
Mary Casper
Keyword(s):  
Ethical Challenges ◽  
Speech Language Pathology ◽  
Thickened Liquids ◽  
Communication Breakdown ◽  
Professional Duty ◽  
Language Pathology ◽  
The Law ◽  
Personal Case

“My patient refuses thickened liquids, should I discharge them from my caseload?” A version of this question appears at least weekly on the American Speech-Language-Hearing Association's Community pages. People talk of respecting the patient's right to be non-compliant with speech-language pathology recommendations. We challenge use of the word “respect” and calling a patient “non-compliant” in the same sentence: does use of the latter term preclude the former? In this article we will share our reflections on why we are interested in these so called “ethical challenges” from a personal case level to what our professional duty requires of us. Our proposal is that the problems that we encounter are less to do with ethical or moral puzzles and usually due to inadequate communication. We will outline resources that clinicians may use to support their work from what seems to be a straightforward case to those that are mired in complexity. And we will tackle fears and facts regarding litigation and the law.

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