A Creation of Legal Practice

The executor is generally regarded today as a trustee. The trust, in turn, is very widely considered today as a distinctive institution of Anglo-American law.^[522] ^{^[523] There is nothing comparable in the civil law.}

Historically, it is 'a natural outcome of ancient English elements'^33/ It has developed in isolation from the ius commune and provides perhaps the best evidence of the gulf that separated, and continues to separate, the English common law from the continental legal systems.^[524] The contributions that have recently been assembled in a book entitled Itinera Fiduciae: Trust and Treu- Itand in Historical Perspective paint a somewhat different picture.^[525] Like the institution of the testamentary executor, trusts in general were a creation of legal practice. The existence of trusts antedated by centuries the concept of the trust. It was only in the nineteenth century that a concerted effort was made to extract a true law of trusts from countless trust-like devices. Treatises devoted to the trust as a separate body of law began to be written.^[526] They finally had to settle what now appeared to be basic theoretical questions, such as determining the exact nature of the beneficiary's interest. Prior to the nineteenth century, attempts at conceptual analysis were much more diffuse.^[527] They were as diffuse as (and, at the same time, closer to^[528] ^{^[529]) the attempts undertaken by the great civilian lawyers to conceptualize the fiduciary relationships with which they were confronted. Like the trust in England, the fiducia in France or Italy was used to solve particular problems even though it did not fit neatly into any of the Roman categories.^3,3 Conceptual clarity was not the starting point. It became a matter of great concern in nineteenth-century Germany, when Germanists and Romanists competed to construe a theory of Treuhand from the historical material available to them.³⁴⁴
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Source: Zimmermann R.. Roman law, Contemporary law, European law. Oxford University Press,2004. — 113 p.. 2004

A Creation of Legal Practice

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