Tajti and Whitman, ‘Common Law Trusts in Hungary and Other Continental European Civil Law Systems’

The increased intensity of global rapprochement of laws is a signature feature of the 21st century. Until the mid-20th century, very little cross-fertilization between common law and civilian systems was the rule. That has now radically changed. The latest example of common law concepts being embraced by the legal systems of Civil Law European countries is the introduction of major aspects of the common law of trusts (‘CLT’). Originally CLT were considered to be a non-transplantable idiosyncratic legal institution. Later, however, a discourse began on the versatility and the economic usefulness of CLT in many settings. Starting out, discussions concerning CLT were limited to pointing out that conditional functional equivalents are offered by some European countries, such as the Germanic Treuhand’.

Today, the prevailing view is that CLT are not just needed by European countries, but that CLT doctrine can be made compatible with the requirements of the civilian legal tradition. The new approach is best expressed by the Draft Common Frame of Reference, Book X – which is devoted entirely to trusts. A growing number of European national laws now embrace the concept of CLT (eg, the French ‘fiducie’ or its Romanian replica).

Hungary is an interesting example of a European country that has adopted major concepts of CLT doctrine, not just because it is the newest member of European countries to embrace provisions of CLT, but because it has specifically chosen to be inspired only by CLT law in spite of otherwise belonging to the Germanic legal tradition.

CLT will undoubtedly continue to be of great interest to much of Europe. Recognition must be made that both in the United States (U.S.), and in other common law nations, there are variations in CLT, although there is agreement on its basic tenets. Given that in Hungary the gates for professional trustees were recently opened and separate licensing and prudential regulations created, that may place Hungary as a leader in expansion of the use of CLT in Europe, both for personal estate planning and for business done with the United States.

Tajti, Tibor and Whitman, Robert, Common Law Trusts in Hungary and Other Continental European Civil Law Systems (2016). John Marshall Law Review, Vol 49, No 3, 2016.

First posted 2017-02-14 06:56:50

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