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Property and the interests of things : the case of the Donative Trust.

Jacques, Johanna (2019) 'Property and the interests of things : the case of the Donative Trust.', Law and critique., 30 (2). pp. 201-220.

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.

Item Type:Article
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Status:Peer-reviewed
Publisher Web site:https://doi.org/10.1007/s10978-019-09241-y
Publisher statement:© 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.
Date accepted:21 March 2019
Date deposited:22 March 2019
Date of first online publication:12 April 2019
Date first made open access:No date available

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