Alexandra Braun

The state of the art of comparative research in the area of trusts

Trusts probably represent the instrument common lawyers have always been most proud of, frequently referring to it as their greatest achievement and their most original creation. Equally, trusts are probably the legal creation of which civil lawyers have been most ‘envious’, whilst at the same time being an institution that they find somewhat puzzling. In fact, while few institutions have attracted the level of fascination trusts have, few have also met with the same distrust and suspicion, partly due to the fact that they are commonly viewed as a device for tax evasion or to frustrate the rights of creditors and spouses.This chapter seeks to explore how comparative research, in common law, civil law and mixed legal jurisdictions, has engaged with the study of trusts and what the scope and the purposes of the enquiry have been. In doing so, it will attempt to shed light on the achievements as well as on the shortcomings of the research in this field. It will argue that whilst comparative studies have gone a long way towards aiding the understanding of trusts, there is more to be done in an area of the law still fraught with some misconceptions.

Formal and Informal Testamentary Promises: A Historical and Comparative Perspective

Since time immemorial people have made promises to leave something by will to another person. Quite often such testamentary promises are made in exchange for some type of service and thus relied upon by the promisee. But sometimes, the promise is not fulfilled. As a consequence, a clash arises between the need to protect the freedom of the testator to change his or her will and the need to safeguard the interests of those relying on the promise. Law-makers on both sides of the Channel have always struggled with the enforcement of testamentary promises, which represent an unsettled area of the law. This article compares German and English law in the area of formal and informal testamentary promises. It looks at how both legal systems regard promises to make wills, be they contractual or not, and compares the remedies they currently award to those who, in reliance on a promise or assurance, assist or provide a service for the testator. In doing so, it not only investigates the rationale and scope of §2302 BGB, and the reasons why German law does not enforce contracts to make wills, but also outlines potential difficulties in the ways in which legislatures and courts tackle especially informal testamentary promises both in Germany and in England.