Trusts in South Africa and Scotland
In the case of South Africa, it was the English trust that came to the Cape in the course of the nineteenth century. But its rules were only partially received.362 They were integrated into Roman-Dutch law as an extra institution of the administrative type.
'The rules of South African trust law are thus a mixture of English, Roman-Dutch and distinctively South African rules, with the latter continually growing in relative importance. There is nothing in them flatly inconsistent with the principles of Roman-Dutch law. Analytically if not historically they can be treated as natural developments from the rules of such institutions as the/idei- commisstim, fiducia, stipulatici alteri, tutorship, curatorship, and common law administratorship. But historically the rules of trust law have at least three main sources, and trust law is all the stronger for being able to draw soAllemagne, Liechtenstein. Analyse des lois existantes cl des projets en cours', in J. Herberts and D. Philippe (eds.), Le Trust et In fiducie: implications pratiques (1997), 63 if.; Michel Grimaldi and Francois Barrière, Trust and Fiducie', in Arthur Hartkamp, Martijn Hesselink, et al. (eds.), Towards à European Civil Code (2nd edn., 1998), 567 if; Wolter (n. 358) 27 if. The standard work arguing that the institution already existed and still exists in French law is Claude Witz, La Fiducie en droit privefnttKjnis (1981); cf. also Wolter (n. 358) 15 if.
360 D. J. Hayton, S. C. J. J. Kortniann, and H. L. E. Verhagen (eds.). Principles of European Trust law (1999); also printed in (1999) 7 ZEuP 745 ff.
361 Hayton, Kortmann, and Vcrhagen (n. 360) 3 f.; (1999) 7 ZEuP 746; ci. also Smits (n. 5) 265 ff.
362 por a|| jctails, see Tony Honore, 'Trust', in Zimmermann and Visser (n. 105) 847 ff.
widely/[530] The Scottish trust developed somewhat differently: 'An important source seems to have been the fidei- commissum of Roman law. English law gave the Scottish trust its name... but in other respects exercised... little influence until the nineteenth century, by which time the essentials of the Scottish trust were already well established. Hence throughout its long history the Scottish trust has remained an institution of the civil law rather than the common law/[531] In the end result, therefore, both Scotland and South Africa have produced a civilian form of trust[532] and it is interesting to see that the Scottish model has exercised considerable influence on the Principles of European Trust Law.
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