Beyond Ownership: Control, Administration and Benefit in Comparative Trust Law

Abstract

Comparative trust scholarship has long recognised that ‘ownership’ is an unstable comparator across civilian and common law systems, yet it has not supplied an affirmative replacement independent of any one tradition’s doctrinal vocabulary. This article proposes a three-axis framework — control, administration and benefit — as an alternative unit of comparison. The axes distinguish functional capacities without first deciding who holds ownership or title. The legal vesting of title is then considered separately as part of each system’s doctrinal implementation of that allocation. The framework is applied to the civilian bewind in its South African, Dutch and Belgian forms, to the Quebec and French fiducies and to the common law trust. The bewind is used not as an analogy or a normative model, but as a diagnostic contrast: its allocation of control and administration to the administrator, while locating benefit with the beneficiary, exposes the different combination of legal title, control and administration in the common law trustee. On this account, the trustee’s indemnity-backed lien, priority disputes and related insolvency and third-party liability problems are reconstituted as consequences of a structural allocation rather than as isolated doctrinal anomalies. The article situates structural contrast within the functional tradition and alongside the formants and transplant approaches. Its claim is methodological rather than reformist: structural allocation, not ownership, is the proper unit of comparison.