1.0 INTRODUCTION
You should be familiar with the following areas
- Concept of Trust
- Types of Trust
- Classification of Trust
- Nature of Trust
- Evolution of Trust
1.1 CONCEPT OF TRUST
Meaning of Trust
According to Black’s Law Dictionary define the word trust as a right enforceable solely in equity, to beneficial enjoyment of property to which another person holds the legal title a property interest hold by one person (the trustee) at the request of another (setlor) for the benefit of a third party (the beneficiary).[1]
Also Underhill & Hayton define Trust as an equitable obligation binding a person is called a trustee to deal with property which he has control (which called property) for the benefit of persons which called beneficiaries or cetrus give trust he may himself be one and one of when the obligation[2].
The Hague Convention on the Law Applicable to Trusts on the Refugee define trust refer to legal action created inter vios or a death by the person, the setlor, when acts have been placed under the control of trustee for the benefit of beneficiaries or specified purpose[3]
1.2 TYPES OF TRUST
There are two types of trust which are testamentary trusts and Inter Vivos ( Living trust). Testamentary trust is a trust created by a will[4].It is generally a discretion trust one where the Trustee Has Full discretion abilities. Testamentary trust are typically created in a testator will must be in writing pursuant to the will formalities[5].
The second one is inter Vivos (The Living) trust is a legal term referring to a transfer of gift made during one’s lifetime as opposed testamentary trust which is established on one death[6].This is the Latin maxim (Be love the living) a phrase used to describe a gift that is made during the donor lifetime[7].
1.3 CLASSIFICATION OF TRUST
There are several classifications of trust but for purpose of this paper includes express trust, secret trust, protective trusts, discretionary trusts, implied, resulting , constructive and charitable. Lord Nottingham’s in case of Fantanion he classify trust as follows;
“ All trusts are either, first express trust which are raised or created by act of the parties, or implied or implied trusts which are raised or created by act or construction of law again express trust are declared either by word or writing and these declarations appear either by direct and manifest proof or violent and necessary presumption. The last one common called presumptive trusts and that is when the court upon consideration either by word or writing though the plain and direct proof thereof be not extent”
1.4 NATURE OF TRUST
That the trust relates to property, the trustee own the property; the nature of the property which can compromise a trust fund, trusts imposes obligations, that the trustee obligations are fiduciary in nature. In case of Westdeuche Landesbank Gizozutrade v Islington[8] the trust emerges as an action exercisable by the beneficiaries in connection with land in the fourth of the confidence one sense of which term equates to the notion of convenience which is used by equity to describe the trust in many other context and which gives a flow of the trustees fiduciary duties of loyalty and confidential toward the beneficiaries. That trusts are property holding divide emerge s for lord Brain –William third principle bof trusts law.
The “Property” which constitutes trust fund can be any form of right in property and need not to equivalent to ought dominium in the underlying property. Thus a lease over land may itself[9].
1.5 EVOLUTION OF TRUST
Researcher here divide this revolution in four category thus under Roman, German, Common Law and formerly Tanganyika now Tanzania.
1.5.1 ROMAN
In Roman the use most is Fidei Commisseo and therefore you find in Justineon that they had a form in testament to give inheritance to one to the use of another[10]. The Roman law of decedent’s estates prohibited legacies to certain classes of person example foreigners[11]. The institution of the fediecommissum arose as a response to this prohibition. The fediecommissum was a testamentary device that directed to a legatee to transfer property to the those in the prohibited category[12]. Originally the Legattee who hold the property for benefit of the fediecommissum had no legal obligation to the latter[13]. There was however a “strong moral obligation for..fulfillment[14].” The term fediecommissum derives from commissum an object entrusted to the fides good faith of the receipt[15].Alan Watson has questioned the strength of this moral commitment. He indicates in the three examples of the fedei commissum known to exist before the beneficiary was given a right of enforcement the testator attempted to strengthen the commitment of the legatee by collateral means[16]. The primary technique was incorporating the existence of fediecommissum in a Will a public document, so that social pressue would opetate to emerge the legatee to carry out his obligation. The Emperor August (63BC-14CE) gave the fediecommissum a legal remedy against the legatee and thus made the fediecommissum legally binding.[17]
1.5.2 GERMAN
Historically German has divided a specific fiduciary relationship between two parties knows as Treuhandanstalt a trust-like legal concept developed in the early Middle Ages under Salian Frankish Law.[18] With the looming danger of the collapse of the East German economy the Government had to find a way to privatize the East German whist simulations ensuring that people maintained their jobs[19].
In order to facilitate this transaction from a planned economy, a trust like legal devise appeared to the solution[20]. As the two German’s reunified, the East German Government created an agency that was responsible for the privatization of East German and this agency was called the Treuhandanstalt translated into English as “trust agency” Wilst are agency was named after this amount Germanic trust, it appears that in reality the characteristics of Treuhandand were not employed by the trust agency rather it appears that a different notion of trusts was used to solve the problems related to the reunification[21]. Normally a trust is perceived to be an old concept in a civil law system and many questions surrounding the creation of the agency therefore remain[22]. More specifically did the agency oprate according to the economic concept of Treuhandanstalt or did operate according to Anglo American trust or can the origins of the Treuhandanstalt be traced back to soviet law.
1.5.3 COMMON LAW
Under common law the history traced back during feudal law which existed in the middle age.[23] The trust was formerly known as use was employed to enact the problem of freedom of alienation and payment of taxes in the system of feudalism.[24] The system of tenure operated in a way in which no person, apart from crown, was absolute owner of land[25]. Instead the ownership of land was operated vertically, thus to say the King granted land to powerful lords, who could in retain grant further segments of land to tenants.[26]
A tenant of crown could grant certain land vested on him to other tenants. If he did this he had a dual role to play in connection with land for he would not only be overlord to this tenant but himself would also be a tenant accountable to overlord hire up in the feudal lords. Within this feudal system of tenure, the death of a tenant entitled the heir of the tenant to take possession of land but not without first paying feudal dues to the overlod.[27] The employment of the allowed land to be transferred to trustees during the lifetime of the tenant upon use of the tenant and after death to the members of his family which include heirs, Land simply belonged to the trustee who at all times remain in possession.
The common Law was strict in requiring land be vested in the heir of the tenant. Where the tenant died without an heir, the owner land became entitled to the land by way of escheat.[28] Transfer to trustees, however allowed land be enjoyed by those designated in terms of the use rather than a strict principles of common law.[29] In recognition of the potential scope of use in undermine the system of feudal dues and consequential emptying of the crown propellant, the statute of use 1535 was introduced which had the effect of undermine certain uses.[30]
The basic aim of legislation was to insure that beneficiaries equitable rights in the land. Rather the use was employed, the intended beneficiary acquired to a legal title to the land and was thus subject to feudal dues in the event of the death of the tenant.[31] In 1540 the statute of Wills was created which incorporated some of the provision which were not in the first statute that was enacted and one of them was that land to be acquired by the heir. Apart from that the said statute permitted the disposition of property after death of the tenant however such dispositions would be subject to the same feudal that existed before[32].
Although the statute of use had some problem include that did not completely different the use concept, it cannot be overstated that the use played a fundamental role in reforming law in the medieval England[33]. The undermining of the feudal system, which was not of touch with needs of landowning citizens the recognition of the need for free alienation in cases where there, they involved the imposition of active duties on the trustees[34]. Where for example a tenant put land upon use when he was absent from the land , the trustee’s role was essentially in collecting rents and paying debts on the land[35]. In this case the use was entirely genuine and not designed to avoid feudal trust. Furthermore uses employed in connection with leasehold land did not come within the ambit of statute of uses. The role of trust in paying the way for law reform was not just seen in the context of feudalism. In the context of married woman, it brought about legislation recognizing that married woman could own property.[36]
The Act 1882, a wife could enjoy a separate estate under trust created in her favor. Providing that there was good reason for creation of the trust, for example where her husband was a wastel- the court of chancery would enforce the wife separate estate in equity[37].
In 1970s implied trust became important in determining the beneficial entitlements to property where the legal title was taken in the name of one cohabite only but the other had contributed to the purchase or was otherwise promote interest in the land.
The intervention of trusts in the context highlighted the problem facing non married couples and promoted a Law commission inquiry resulting in a report published in 2006 calling the law reform by legislation. More recently the law commission revised this area of law in 2007.
1.5.4 TANZANIA
During German period the History of RITA dates back in 1917 when the Germany colonial power enacted a law for registration of births and deaths (Proclamation No.15 of 1917.[38] When the British took over the administration of Tanganyika (Tanzania Mainland) from the Germany retains the Register of births and deaths established under the Germany law by saving it under the Birth and Deaths Registration Ordinance 1920 (Cap 108)
Between 1920 and 1960 the British colonial power come with more laws on by life events and other matter.[39] These laws were either wholly or party administered. Some of the laws are Bankruptcy Ordinance, 1920, Cap 25, Registration of Documents Ordinance 1923 (Cap 117), Marriage Ordinance, 1921 (Cap 109), Companies Ordinance 1921 (Cap 212), Administrator General Ordinance 1921 (Cap 27), Land (Law of property and Conveyancing ) Ordinance 1923 (Cap 114), Land (Perpetual Succession) Ordinance 1927 (Cap 119), Business Name (Registartion) Ordinance 1930 (Cap 312), Public Trustee Ordinance, 1930 (Cap 31), Deeds of Arrangement Ordinance, 1930 (Cap 26), Patents (Registration) Ordinance 1931(Cap 217), Trade Mark Ordinance 1931 (Cap 216), Adoption Ordinance 1953 (Cap 335), Trustees incorporation Ordinance 1956 (Cap 375), Chattels Transfers Cap 210, Trade Unions Ordinance Cap 381 and Building societies Ordinance 1954 (Cap 340).
[1] B. A. Garner, Black’s Law Dictionary , Thomson & West Publisher, 20048,1546
[2] D.Hayton & A. Underhill, Law of Trusts and Trustees, Lexis Nexis Butterworth (2010),1
[3] The Hague Convention on Law Applicable to trust on the Refugee ( 1st July 1985)
[4] L.B Curzon, Equity and Trust, British Library Catalogues in Publication Data, London (1985)1st 94
[5] Ibid
[6] P. Wendel, Wills, Trust and Estates, Aspain Publishers, New York, (2005), 215
[7] Ibid
[8] Westdeuche Landesbank Gizozutrade v Islington LBC [1996] AC 669
[9] Ibid
[10] G.P. Verbit, The Origins of the Trusts, Library of Congress (2002), New York, 78
[11] Ibid
[12] Ibid
[13] C. Rounds, Loring and Rounds: A Trustee’s Handbook, Wolters Kluwer, New York (2019), 1353.
[14] Ibid
[15] Supranote 11
[16] Idem,80.
[17] K. Sandberg, Omnum Annalum Monumeta: Historical Writing and Historical Evidence in Republic Rome, Brill, Amsterdam (2010), 203
[18] B. Akhermans, The principles of Numerious Clauses in Europe property Law, Library of Congress, New York (2002) 76.
[19] Supranote 11, 96
[20] U. Flevert, Work in a Modern Society: The German Historical Experience in Comparative, Berghabn, London (2013)3rd, 93
[21] Ibid
[22] Supranote 21
[23] Supranote 11, 38
[24] Idem 40
[25] Idem 41
[26] Ibid
[27] S.N.Eiseristadt, Power, Trust and Meaning, University of Chicago Press, New York ( 1995)3rd , 23
[28] Supranote 11, 55
[29] Ibid
[30] Ibid
[31] Idem 59
[32] Idem 64
[33] Supranote 11, 70
[34] Ibid
[35] Supranote 11, 86
[36] Ibid
[37] Idem, 90
[38] http://www.rita.go.tz/ (accessed 16th April 2019 at 18:55)
[39] Ibid