Property and the Interests of Things: The Case of the Donative Trust

Jacques, Johanna

Abstract

Within a liberal, ‘law of things’ understanding of property, the donative trust is seen as a species of gift. Control over trust property passes from the hands of settlors to beneficiaries, from owners to owners. Trust property, like all other property, is silent and passive, its fate determined by its owners. This article questions this understanding of the trust by showing how beneath the facade of ownership, the trust inverts the relation between owner and owned, person and thing. It analyses the relation that trustees, beneficiaries and settlors have to the trust property and argues that the role of each of these parties can be shown to consist in furthering the interests of the trust property rather than their own. It claims that this protects things from their owners at the same time as it ensures these owners’ ongoing care towards the things they own. This raises questions about the trust’s status within the institution of private property, justified as it is by the human autonomy it is said to enable.

Citation

Jacques, J. (2019). Property and the Interests of Things: The Case of the Donative Trust. Law and Critique, 30(2), 201-220. https://doi.org/10.1007/s10978-019-09241-y

• Journal Article Type: Article
• Acceptance Date: Mar 21, 2019
• Online Publication Date: Apr 12, 2019
• Publication Date: Jul 1, 2019
• Deposit Date: Mar 22, 2019
• Publicly Available Date: Jun 11, 2019
• Journal: Law and Critique
• Print ISSN: 0957-8536
• Electronic ISSN: 1572-8617
• Publisher: Springer
• Peer Reviewed: Peer Reviewed
• Volume: 30
• Issue: 2
• Pages: 201-220
• DOI: https://doi.org/10.1007/s10978-019-09241-y
• Public URL: https://durham-repository.worktribe.com/output/1334806