再识Trust：置于Contract Privity doctrine- 大数跨境

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再识Trust：置于Contract Privity doctrine

法学生 AI 生产力

2024-12-30

导读：信托确实是个内地法学生蛮难懂的概念，所以本次再从“信托是其中一种对合同相对性原理的突破”这个角度，帮助大家理解信托

信托确实是个内地法学生蛮难懂的概念，所以本次再从“信托是其中一种对合同相对性原理的突破”这个角度，帮助大家理解信托：

The trust is a device developed by the court of chancery long before the judicature act 1875. It allows one party to pass property toa second party, while stipulating that the second party must hold the property for the benefit of a third. This arrangement is typically adopted for tax reasons or in situations where the third party is under some incapacity making the thrid party unfit or unable to manage the property.

Such a stipulation is enforceable by the third party. Interms of the triangular relationship outlined in the Figure, A (trustee) receiveds property from B over which B has declared a trust in favour of C (cestui que trust, or the beneficiary). C is then able to enforce the terms of the trust to prevent A from dealing with the property other than in a manner that is to C's benefit. (Although the relationship between the party declaring the trust and the trustee is not necessarily contractual, where it is, the device is inconsistent with the privity doctrine).

The court of chancery took the view that a properly constituted trust had the effect of actually transferring and splitting the ownership of the property in question. The legal owner (under the common law rules) was the trustee, but the effect of the constituion of the trust was to make the third party the beneficial owner of the property.

To allow the third party to enforce the trust was not, therefore, to allow the enforcement of a contractual right to acquire the property. The property belonged to the third party from the moment of constitution of the trust, and enforcement of the trust by the third party was necessary to prevent improper interference with that third party's right, which was similar in natrure to a property right. In turn, the trustee could not, as a matter of good conscience, interfere with the right.

In order for there to be a properly constituted trust, there must be property that is capable of being subjected to a trust. Property includes not only land and good, but alsorights, such as a right under a contract (choses in action 指的是一种无形财产或无形动产，它通常涉及可以通过法律诉讼来要求或强制执行的权利，与有形动产（chose in possession）相对).

There must be a declaration of , or disposition on, trust by a competent person which demonstrates a certain intention that a trust be created.

There must also be certainty of property and of object, i.e. it must be possible to determine the property to which the trust attaches and the purposes for which the trust was created.

The most significant aspect of the trust as an exception to the privity doctrine arises where one party declares itself to be a trustee on behalf of a third party of a right to performance owed to the third party by the other contracting party, i.e. in terms of the triangular relationship outlined at Figure, where B decalres himself to be trustee on behalf of C of the performance due to C under the contract from A.

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