ABSTRACT
This chapter considers the way in which trusts are used in commercial transactions. One of the themes in many of the later sections of this book is the difficulties which ensue when disputes arising from the real-world activities of the parties to litigation-for example, the financial transactions at issue in the local authority swaps cases-are dealt with by the courts according to the long-established norms of legal categories like contract law, trusts law and so on. What happens frequently is that the lawyers translate issues from the language of finance and commerce into the language of law. Law is primarily a language.1 In studying this subject of equity and trusts the reader has had to learn a new language in which ordinary English words like ‘demise’, ‘trust’ and ‘interest’ have been given technical meanings by lawyers. This process of translation arises in any given litigation. This chapter will consider the particular context of commercial transactions-replete with their own technical language, their own norms and their own objectives-when they come into contact with trusts law and equity. As we shall see, commercial people tend to be very suspicious of the use of the sort of discretionary judicial remedies considered in this book, although they have been eager to exploit express trusts, floating charges and the early trust-based company models developed by equity. The use of equitable concepts by commerce has been a complex process.
