Welcome to An Introduction to the Common Law of Trusts. On this course we will be exploring the device of the trust as it has developed in the common law world. The focus will mainly (but not exclusively) be on English law, from which the trust first grew, and against which other common law jurisdictions regularly make reference in the development and application of trust laws.
As you will know, the common law system entails a materially different legal tradition from the civilian system on which Taiwanese law in based. The trust is a unique device which can fairly be said to have developed out of — and therefore arguably embodies — the quintessential features of the common law system. It might, therefore, be asked: why is it necessary to learn about the trust, from a civilian perspective? There are at least three answers. First, trust law has been introduced through statute by numerous civilian jurisdictions, including Taiwan (as well as China, Japan, South Korea, many South American countries, etc). A possible explanation for this is that the trust clearly has advantages, which even civilian jurisdictions wish to exploit. Those advantages are best appreciated when one understands the original (mainly English) conception of the trust. Secondly, discussions concerning the development of those statutes, debates concerning those statutes’ efficacy, and conversations about how they should be improved, have often taken the common law trust as their starting point. It is therefore useful to have a proper understanding of what that starting point is, in order for those conversations and debates to reach their full potential. Thirdly, even for civilian jurisdictions which have never considered introducing trusts into their laws, there is always a cross-border issue. For example, should (and if so, how ought) local laws respond to citizens who set up trusts overseas (eg for tax purposes)? From a private international law perspective, should (and if so, how ought) local courts recognise trust law judgments decided by foreign courts? Again, a proper answer cannot be given without first understanding the wellspring of the trust, which is to be found in the common law.
This course is an ‘introductory’ course, which means that the material will not, in general, engage in technicalities or explore the niceties of very specific rules and debates. Rather, the aim is to provide students with an overview appreciation of the common law trust, in order to generate an understanding as to what it entails. One question you might find helpful to ask yourself as we go along is: how is the rule (or concept, debate, etc) which I am learning different from the civilian notions which I am used to? You will make the most out of the course if you get into the habit of critically analysing the material.
Given that our classes are scheduled across six evenings back-to-back (with the exception of a weekend between the first and second class), it may not be feasible for you to pre-read the reading material before classes. It does not matter: I will aim to introduce the material to you in class, so that when you come to doing the reading, it will (hopefully) make sense to you. It is important, however, that you do read the reading material before the exam, and not rely solely on the discussions we have in class.
Your assessment will be made up of two components: class participation (10%) and an examination (90%). Class participation will be graded by a score out of 10. I will be generous with the grade: the aim is to encourage participation; it is not to penalise infrequent contributors, neither is it to encourage excessive participation. In other words, if you are an engaged participant in the classes and attempt to contribute thoughtfully, you can expect to obtain to do well in this component. The examination will take the form of an essay, marked out of 100 and reduced to 90% of the overall grade proportionally. The essay question will be released on 9 January 2020 at 9am on the course website, and you must return your answer by 3pm on the same day. Late returns will be penalised at the rate of 10% each hour or part thereof. The essay, which must be typed, should contain no more than 2,500 words: any words exceeding that amount will not be marked. There is no need for a bibliography or footnotes, but your answer should be in prose form, well-structured, and sufficiently supported with relevant cases, materials, arguments etc. There is no need to rely on any material outside the prescribed reading materials on this course, although you may do so if you wish (and only if it is relevant). Among other things, the essay will be marked taking into account the extent to which it answers the question, the range and appropriateness of legal materials employed, the structure, and the extent of critical analysis. Imperfect grammar or spelling will not per se lead to a reduction in your mark — after all, the course is a law course, not a language course — but a poorly expressed answer may not convey your message accurately.