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The Law of Trusts EDITED BY GERAINT THOMAS AND ALASTAIR HUDSON [Oxford: Oxford University Press, 2004. clxxxix + 1907 pp. Hardcover: £195]
The competition for trusts texts has never been so keen, with ever more titles being added to the shelves. The Law of Trusts represents the latest addition to the library of practitioner trusts texts. In a field dominated by Lewin on Trusts (2000), now in its 17th ed., and Underhill andHayton: Law Relating to Trusts and Trustees (2003), now in its 16th ed., the latest offering by Oxford University Press offers a twist to the traditional trusts text. In addition to setting out the general principles of trusts law, The Law of Trusts also seeks to apply those principles to the various types of modern trusts. To this end, the 1907 page text is divided into two sections: the first, and slightly larger, half is devoted to setting out the general principles of trusts law; the second focuses on the various specific guises adopted by modern trusts.
Like its brethren, The Law of Trusts begins with the unenviable task of attempting a definition of the trust. In this respect, it fares no better than the many other attempts before and one wonders if there is any point in attempting to define precisely the concept of a trust given its fluid nature. There are so many different rales for so many different circumstances that it is arguable whether there is one single concept or many related ones: see, e.g., McBride, "On the Classification of Trusts" in Birks and Rose (eds.), Restitution and Equity (2000) Vol. 1, 23 at 23-4. Take the opening sentence of Chapter 1 (at 13): "The essence of a trust is the imposition of an equitable obligation on a person who is the legal owner of property (a trustee) which requires that person to act in good conscience when dealing with that property in favour of any person (the beneficiary) who has a beneficial interest recognized by equity in the property." It is trite law, of course, that a trustee need not hold legal title; an equitable title will suffice. Further, insofar as it is suggested that the essence of the trust is an equitable obligation imposed upon a trustee, this...