Trust laws of Jersey and Malta: a civilian interpretation
Galea, Patrick Joseph
This thesis attempts to identify the philosophy, key questions and priorities behind the trust laws of Jersey and Malta. By wide accord, the Jersey law has served as a model in many ways to its later Maltese counterpart. This affinity is placed against the similar background of either jurisdiction, which embraced, to varying degrees, both the Civil Law tradition and Common Law influence. The analysis is advanced through the different moments of the trust, from its creation to termination. Nevertheless, the underpinning focus and thrust is on the civilian identity of either trust. It considers whether, and how far, the fundamental Civil Law concepts and language play a defining role in their civilian configuration. The question is asked whether the creation of the trust and the duties of a trustee can possibly be classified as obligational or contractual, or maybe something else. The nature and character of the beneficiary’s rights are also reviewed. The overarching role of good faith and civil responsibility, along with their extent of interaction with traditional Equity fiduciary duties, are weighed, an assessment naturally following from the civilian flavour attributed to the trusts. The conceptual overlapping between the Roman-Civil law fiducia, and related figures such as the mandat prêt-nom, with the Equity fiduciary duties, is assessed. The role, even if subsidiary, of civilian unjustified enrichment, remains an ever-present relevant factor. Sham trusts and simulatio, the Pauline fraud and legitim are considered in the context of the civilian identity of these trusts. The discussion then engages with the other strand of the thesis, being the role of the governing law, as the ‘mind’ behind the trust legislations assessed. The discussion engages with the question whether the trusts fall on the side of respect for the ‘autonomie de la volonté des parties’ or on other policy determinants behind the law.