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

Jacques, Johanna

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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 Mar 29, 2024
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

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Publisher Licence URL
http://creativecommons.org/licenses/by/4.0/

Copyright Statement
Advance online version © The Author(s) 2019. This article is distributed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license, and indicate if changes were made.




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