Roman Law, Canon Law, and the Trust
Moreover, most of the trust-like devices that existed for so long in England and on the Continent depended to some extent on Roman law. Roman law itself had not developed the trust as an abstract fiduciary concept, but it had known a fiduciary institution (the fideicommissum) and a fiduciary office (the tutor).34'' It thus provided impulses towards, and examples of, the workings of the trust and the role of the trustee and stimulated the later legal development on both sides of the Channel.
Once again, Canon law played a significant part in the medieval development. It contained texts and principles from which rules useful in creating trust-like institutions could be fashioned which the popes and their clerical deputies, animated by an ideal of utilitas ecclesiae, required for a variety of purposes.346 These institutions were a part of English ecclesiastical court jurisdiction for a very long time,347 and they were a feature of the English legal landscape at the lime when, and even before, from the 14th Century to the End of the Ancien Regime', in Helmholz and Zimmermann (n. 321) 327 ff.5U Helmut Coing, Die Trenhaitd kraft private» RechtsgexMfts (1973); Sybille Hofer, Treuhandtheorien in der deutschen Rechtswissenschaft des 19. Jahrhun* derts', in Helmholz and Zimmermann (n. 321) 398 if.
■us David Johnston, 'Trusts and Trust-Like Devices in Roman Law', in Helmholz and Zimmermann (n. 321) 45 ff.; cf. also idem. The Roman Law of Trusts (1988).
446 See Shael Herman, 'Utilitas Ecclesiae: The Canonical Conception of the Trust’, (1996) 70 Tulane Law Review 2239 ff.; idem. Trusts Sacred and Profane: Clerical, Secular, and Commercial Uses of the Medieval Commendatio', (1997) 71 Tulane Law Revicto 869 ff.: idem. The Canonical Conception of the Trust', in Helmholz and Zimmermann (n. 321) 85 ff.; idem, ‘Utilitas Ecclesiae versus Radix Malorum: The Moral Paradox of Ecclesiastical Patrimony', (1999) 73 Tulane Law Review 1231 ff.
347 Richard Helmholz, Trusts in the English Ecclesiastical Courts 1300-1640', in Helmholz and Zimmermann (n. 321) 153 ff. the Chancery's jurisdiction over uses became established.348 It is likely that the trusts enforced in the ecclesiastical courts played some role in the evolution of the trust in English law.344 At the same time they served as a bridge between English and continental law. The resources of the Roman and Canon laws were thus a continuing factor in the creation and regulation of trusts.
3.
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