Yaell Emerich, ‘The Civil Law Trust: A Modality of Ownership or an Interlude in Ownership?’

How can the trust drawn from the common law take shape within a civilian context? Fiduciary ownership is not unthinkable within a civilian context. It may be considered as purposive ownership or, to be more precise, as a modality of ownership. Quebec’s legislator, imagining the fiducie as a patrimony by appropriation, has impressed this purposive character within the very heart of the concept of patrimony, which emerges as a renewed concept. However, the question arises of discerning the extent to which Quebec’s fiducie has severed all ties to ownership, and of the theoretical limits and challenges presented by a conception of this kind. Who is this “other” whose property is administered by the trustee? From whom does one acquire property when it has been held in a fiducie? Should Quebec’s fiducie be analyzed as a modality of ownership or as an interlude in ownership?

Emerich, Yaell, The Civil Law Trust: A Modality of Ownership or an Interlude in Ownership? (2013). Lionel Smith (ed), The Worlds of the Trust, Cambridge, Cambridge University Press, 2013.

First posted 2014-04-13 19:23:20

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