Evaluating the contractarian theory of the express trust

Abstract

This article critically examines the contractarian theory of trust law in order to ascertain: (1) its utility as a conceptual model of the express trust; and, (2) its analytical strengths and weaknesses as a comparative tool in assessing both the laws of trusts and contracts, and the differences between United States and Anglo-Australian law. It concludes that while there is value in the developmental trends and trajectories that contractarianism reveals, its framework serves better to illustrate the key doctrinal differences that exist between contracts and trust law and, perhaps more importantly, the differing understandings of each that inform Anglo-Australian and United States law.