Article: “Trusts Without Equity”: A Reappraisal

This paper examines the idea of trusts without equity, and argues that whilst one can have trusts without equity, that doesn’t mean that non-equitable trusts are the same as equitable trusts and vice-versa. It argues against common law influence as regards the Quebec trust, but in favour of common law influence as regards the Scots law trust. In that vein, although the patrimonial theory can provide a fairly complete explanation of the former, the paper shows that it cannot provide a complete explanation of the latter, neither is a reflexive rejection of English law/equity influence of the latter desirable. In particular, it argues that aspects of Scots trust law can only be explained by reference to the traditional split title/dual ownership understanding of the equitable trust.