CIVIL LAW TRUSTS
Origins of the Trust in the Civil Law
Common lawyers and British subjects who lived in Quebec at Confederation had a tradition of using the common law trust in a testamentary capacity. It became necessary to introduce a concept of the trust into the Civil Law to accommodate this practice. Articles 869 and 964 of the CCLC referred to “trustees” but this did not represent a comprehensive trust law. Prof. Cantin Cumyn suggests that these provisions do not support the hypothesis that Quebec Civil Law had a concept of trust prior to the 1879 Acte concernant la fiducie.
L’Origine de la fiducie québécoise, M. Cantin Cumyn
The trust was a new concept in the civil law, based on British influences. It did not have its roots in the historical development of the civil law.
The Roman fiducia was provided an example of a historical link to the trust. The fiduciary would accept the property of the transferor subject to a pact to either return it or to transfer it to a third party at a later time. This pact was not enforceable. The fiducia was used as a means to provide security for as debt or to hold property in the transferor’s absence. This institution fell into disuse, however, during Justinian’s rule.[1] Civil law today uses the notion of a hypothec.
The fidéicommis testimentaire is an institution from Roman law. The paterfamilias would charge a legatee to compel him to give part or all of his estate to certain people outside the immediate succession. This practice was also not enforceable. However, two practices rendered the fidéicommissaire’s role obsolete. Firstly, substitution allowed for title to pass from institute to substitute by disposition of the testator. Secondly, the Roman law recognized the specific disposition of property by will to others.
Article 869 CCLC also created a situation where a tutor would provide for the transfer of property to a minor when that person became an adult. If, however, the tutor failed in this function, the tutor would not get to benefit from the property; it would either result to the settlor or it would go to the next in succession if th
flexibility when it came to making charitable donations. The words “poor” are not vague, when the court puts the words in the context of a charitable legacy (Ross v. Ross). The ancient regime recognized such dispositions.
Simply because the legacy does not name someone to take as a beneficiary does not make it invalid. A legacy can be left for people who are not yet in existence or who as are yet undetermined. It is in the interests of justice that the law recognize these dispositions.
Rationale: Article 869 allows a testator to leave a charitable legacy with uncertain terms; however, this legacy is not enforceable.
[1] An onerous trust is like a Roman fiducia, although obligations on all parties are binding and enforceable.
[2] According to Mignault’s theory, the trustee or in this case, the legatee, is the owner of the property.
