General View of Trust

Introduction.-
The Common Law in England was deficient in certain matters of natural and universal justice and
particularly in matters of trust and confidence it took no cognizance. Thus the Common Law being
silent on the subject, Courts of Equity, considering the conscience of the party entrusted, as bound to
perform the trust, in order to prevent a total failure of justice interfered to compel the performance
of it. The Courts of Equity assisted the trustees, whenever they sought the aid of the Courts as to the
establishment, management or execution of the trust.

Definition of trust.
(No one has yet succeeded in giving an entirely satisfactory definition of a trust. Thóugh there exist
many definitions of trust.

.General meaning of Trust:

The word “trust” in its legal sense has a technical and definite meaning which is very much different
from the sense in which we use the word in our daily parlance. The three certainties ,namely, a
person, who is a trustee, property which may be chattel or land money or any property tangible or
intangible which is called trust property and a person for whose benefit the propertyis held. The
combination of these three elements must exist,before we get the relationship of trustee and
beneficiaries.

Sourse of the law of Trust.-

Law of Trust is a great contribution of Equity jurisprudence in England. Prof. Maitland said “Of all the
exploits of equity the large stand the most important is the invention and development of the trust”.

During the period of the 1st King Adward, the chancellors of the King's Banch were the main
sustainer of the Equity law in13th century. The then, a priest of church could not have the right of
any land property as per the common law. So, they we are depended on the gift of the people. The
general people of England imposed their property to the Brough community. The priests of church
were maintained by the benefit part of those properties. It is mentionable that, all requirements of a
trust we re-exist here.

We know that, all kinds of trusts must have three parties. 1) Generally, a trust is a confidence
reposed in and accepted by some persons or person and such a person is called “trustee”. 2). the
trustee is under obligation to use his ownership for the benefit of another who is called the
“beneficiary and 3).The person, who wants to trust his property upon trustee for the benefit of
others, is called settler”. It is mentionable that, we have got all requirements of the modern trust
from the above statement. In this case,the general people of England is called settler or author of
trust, Brough community is called trustee and the priest of church is called beneficiary. So,this system
can be considered as the sourse of the modern trust.

.Concept of a trust.-

All efforts for defining a trust have remained unfruitful in so far as no complete definition of it has
been produced. According to D. Hanbury, therefore, it is better to describe what a trust is and to
compare the idea with other like concepts on order to understand its nature. A trust may be
described as an equitable obligation binding a person to deal with the property over which he has
controlled for the benefit of persons of whom he may him self be one and anyone of whom may
enforce the obligation. From the above descriptive definition, it is very clear that a trust is an
Obligation-An equitable obligation binding a person's conscience. It is concerned with property
which is to be held in confidence and managed for the benefit of certain persons called beneficiaries.

.How a trust arises?-

A trust may come into being in various ways but a very simple way in which it arises may be, when A
transfers his property to before the 'use' of and in trust for X.A is the owner of property, X is the
beneficiary and B is a trustee in whom confidence by the owner of the property is reposed.
According to common law, A was the legal owner and B was to look after the property and manage it
for the benefit of X. These were B's moral obligation. English common law could not enforce this
arrangement because enforcing moral obligations was not within its competence which was its
prominent draw back. In the equity courts also it was quite difficult in the beginning to enforce this
obligation as equity follows the law', but in course of time ingenuity of the chancery lawyers and
judges found a way out, so that B was recognized as the legal owner and and obligation was attached
to this title whereby his conscience was bound to carry out the moral obligations in favor of X. B was
thus bound to hold and manage the property, and not to give it away to any body or damage it. If he
did it, he was punishable. In other words, equity converted moral obligation into equitable obligation
by dissociating beneficial interest from legal title and gave the essence or the kernel to X and the
husk to B. A trust thus arises when beneficial interest is dissociated from legal title and confidence is
reposed in the legal title holder.

Significance of Trust.-
Trust has been described by eminent writers and jurists as the highest and most distinctive
achievement of Equity Jurisprudencein England. Some of the opinions are laid down as under.

Maitland says that “of all the exploits of Equity the large stand the most important are the invention
and development of Trust”.

According to Bacon, “A trust is the binding of the conscience of one to the intention of another".

Hanbury also says that "Trust is the very centre and kernel of Equity".

Trusts constitute a very important and comprehensive branch of Equity jurisprudence.

Historical Background of the conception of the modern Trust.-

There are some authorities who hold that the Trust is historically connected with the Roma fedei
commissum and some say that it originated and developed in the English legal system from the
ancient 'use'. It would be useful to discuss this controversy briefly here.

Maitland establishes his theory on the basis of the following grounds.

(1) The term 'use' is not derived from the Latin, usus but from the Latin 'opus'. The phrase 'ad opus'
now means 'on behalf of.

During the transliteration of the Latin term through French, this word became confused with the
term 'use' and under this confusion the English people began to speak both 'ad opus' and 'usus' to
denote 'on behalf of another'. There is no trace,
however, of the connection of the 'use' with the Roman institution of 'usus'. It was in the 13th
century that the term 'use' of 'ad opus' acquired its modern significance viz, that of 'land.
permanently held by one man to the use of another man.'

(2) The Roman 'fedei commissum' belonged to the law of 'testament' out the English 'use' was
originated in an agreement 'inter vivos' e.g. where the owner of a land 'en feoffed' the land to
another person known as the feofee to 'uses' who agreed that he would hold the land 'ad opus' on
behalf of another (who came to be known as the cestui que trust).

(3) The Chancellors for the early stages followed the Common Law rules in dealing with the 'use'. The
right of the cestui que use was very much similar to the rules of legal estate and therefore theses
rules were brought to bear upon the 'use'. The Roman 'fedei commissum' could not claim any such
right of ownership. Pomeroy has very ably summed up this controversial question, and has given the
following explanation with regard to the origin of trusts. He says "although it is plain that the
conception of a 'use' was borrowed from the 'fedei commissum' of the Roman

Law and that the English Chancellor followed in the footsteps of the Roman Magistrate, yet beyond
his mere elementary notion or suggestion there is little resemblance between the two species of
ownership. These essential differences are as marked as their superficial similarity; and it is a grave
error to represent the entire Equity jurisprudence concerning 'uses' and trusts' as derived from the
Roman Law'. 'Trust' a developed form of 'Use'. - Taking the theory of

Maitland, which the modern 'trust' developed from the ancient 'use', we divide the history of its
development into two periods, namely.

(a) Before, and

(b) After, the Statute of Uses

SAMSUL
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