Article by Ronald J. Scalise
This Article takes up the issue and attempts to shed some light on the fundamental question of who owns the property in a trust under Louisiana law. This Article provides background by discussing the trust in comparative perspective, tracing briefly its development and conception in Anglo-American law. It then explains why the trust has generally not existed in civil law jurisdictions but provides examples of trust-like devices that have existed or do exist in the classical civil law systems evidenced by Roman, French, and German law. This Article evaluates the competing arguments for ownership of the property in either the trustee or the beneficiary in Louisiana but finds both arguments wanting. Far from being simply a theoretical issue, this Article suggests reasons why appropriate analysis of trust ownership has mattered and still matters. This Article offers a not so modest proposal for the answer to the fundamental question regarding ownership of trust property. It proposes that both the trustee and the beneficiary maintain real rights in the trust property. Although contrary to fundamental civil law principles, this solution, it will be contended, is necessitated by both historical evidence and a functional examination of the roles of the trustee and beneficiary under Louisiana law. Finally, this Article concludes with some hopeful thoughts on the meaning of the above conclusion and suggests that, perhaps, after full consideration, the idea of dueling real rights in both the trustee and the beneficiary is not so radical after all.
About the Author
A.D. Freeman Professor of Civil Law, Tulane Law School. The author also serves as the reporter for the Louisiana State Law Institute’s Trust Code Committee.
92 Tul. L. Rev. 53 (2017)