Contractual Analysis On The Relationship In The Trust

Trust is more like a contract than property under the civil law system as in China, thus the contractual analysis on the structure of trust is important in civil law system. This paper tries to analyze the structure of trust in the perspective of relational contract theory and the author hopes it would be helpful for the trust to be better applied in civil law system.This paper generally includes four parts.Chapter one explores the history of trust and contract and achieves the origin of the debate on them. And at present, the contractual analysis is being preceded under the theory of neoclassical contract theory and the structure of trust is deemed as a third party beneficiary contract. But such structure cannot explain certain features of trust.Chapter two analyses the nature of trust and try to separate the contractual part and the property part. The system of patrimony is introduced in to substitute the system of property in civil law. Based on the system of patrimony, the subject of contractual analyses is focus on the contractual part: the juristic relationship among parties in trust since the patrimony is founded.Chapter three analyses the juristic relationship in trust under the classical theory and finds that there are four parties in trust, they are settlor, patrimony, trustee and beneficiary. The settlor and the trustee conclude an entrustment contract on how the trustee shall manage and transfer the trust res. The trustee shall assign the benefit of the trust to the beneficiary. This model successfully solves the problems on the title of property, independence of the property, stability of trust, etc.. But this model still cannot explain the fact that only the settlor’s will is expressed in the trust, that the duty of loyalty and the duty of prudence, that right from the contract between the settlor and the patrimony which the trustee and the settlor enjoyed, that statutory alteration on trust, etc.. The reason of failing to explain lies on the classical theory itself.Chapter four starts with a brief introduction on the theory of relational contract and then elaborates the reason of choosing such theory, including its improvement on ex-theories and similarity between trust and it. Under relational contract theory, the problem mentioned above which cannot be solved under the classical contract theory can be explained well. According to view of relation and long-term on the relational contract theory, the author solves the problems above separately in dynamic perspective and static perspective.