ABSTRACT
The express trust is an equitable institution: one which has hardened over time into something resembling a contract, in that the rules for its creation, operation and termination have become concrete.1 This development is due both to its commercial application and its long-standing use as a means of providing for the welfare of rich families in marriage settlements or will trusts. Both of these contexts required certainty in the use of trusts, with the result that the general equitable notions have been pushed into the background.2 This chapter suggests that the bright-line tendency of much of the law on express trusts towards ever stricter rules means that there is a need for a new division in the categories of the law of trusts. The increasing prominence of pension funds and investment funds based on trusts law principles requires that the existing principles of trusts law be developed to match the regulatory rules applied to such funds. That is aside from the equally difficult developments in the treatment of trusts implied by law.3 This essay attempts to outline some of the ways in which that redrawing of principles could take effect, once it has re-established the foundations on which trusts law is built, in spite of other competing, fashionable notions.
