Terms Related to the “Trust” in Georgian, Russian and English Languages (according to “The Civil Code of Georgia”, “The Civil Code of Russian Federation” and “Montana Code”)

The "trust" is characterized as an institution of Anglo-American law. Generally, it is irreplaceable in the cases "when the real owner of the property must be substituted by the nominal (trusted) owner for carrying out civil relationships" [The Commentary ... 2001:416].

       The classical form of the institution of "trust" developed in the 14th century as a part of the Law of Equity. However, the legal relationships similar to the "trust" originated in Egypt and Japan (in 500 B.C.) and later they were implemented in Roman law (the 1st-3rd centuries A.D.) in the form of  fiduciary relationships. Under a fiduciary contract: "one person ( principle ) transferred property to another ( fiduciary ) on the basis of a certain condition (  fidei fiduciae causa  ), which  obliged him(her) to use the property in accordance with  the terms of the contract and to return it immediately after the emergence of the conditions specified in the contract" [Zambakhidze, 2000:59].

    The institution of "trust" developed in England during the 12th and 13th centuries. It was known as "uses" (or "use of land"). The name of the institution specified its connection with the land ownership. At that time, land ownership in England was based on the feudal system. When a landowner (knight) left England to fight in the Crusades, he needed an "acting administrator" for his estate.  The administrator was obliged to run the ownership and pay feudal dues. However, the owners would often return to find difficulties in returning their legal rights. The legal disputes between "acting administrators" and owners were resolved by the King. Later the King's power was transferred to the Lord Chancellor.  In the 15th century the function of resolving the disputes was delegated to the Lord Chancellor's Court. The necessity of the creation of new legal norms emerged and the establishment of a new institution (which was later called a "trust") was facilitated.

       Nowadays a "trust" is defined as an element of Anglo-American system of law (Common Law). It's worth mentioning, that the main essence of the institution of  "trust" is the "trust" ( with the meaning of  "the firm belief in the reliability, truth or ability of someone or something"): the trust of the "owner", who entrusts his (her) property to the "trustee". "But a "trust" is not a legal category. It cannot be placed within "legal frames". The trusted relationships of the parties are defined by general forms of justice" [ Zambakhidze,2000: 59 ].

        Nowadays the institution of "trust" characterizes not only the system of Common law, but its different modifications are established in the laws of the countries with Continental Europe's legal system. Generally, the process of establishment is complex. Consisting of different stages, it can be treated as a component of the on-going process of the integration of legal systems of the world.

       The given paper studies the institution of "trust" and  terms related to it on the basis of the comparative analysis of Georgian, Russian (the law of Continental Europe) and American ( Anglo-American law ) legal systems. American law is presented by the Code of its leader state  - Montana. It's worth mentioning, that the legislation adopted by the State of Montana is generally called "The  Uniform  Probate  Code" ( or "Montana Code" ) and is recognized by eighteen states of the U.S. ( wholly, partially or with significant modifications).

       Montana Code defines "trust" as a special form of ownership whereby one person (the owner) transfers property to another ( trustee ) and charges him(her) with the task of managing it. This type of transference causes the "split" of titles and obliges a trustee to manage the property only in accordance with the owner's instructions. Generally, the owner of the property is denoted by the term "trustor" (in the law of the United States, a trustor  is also called a settler  (a settlor), a creator, a grantor  and a donor), while "trustee" means a "manager" or a "trusted owner" of the property. The ownership transferred on trust is denoted by the term "trust property", while its equitable owner is the so-called "beneficiary".

        The term "beneficiary" originates from Latin word "beneficium" ( kindnessfavor ). According to the general definition presented in the legal literature, it denotes a physical person or a legal entity, which receives money or other benefits from the "benefactor".  The institution of trust considers a "beneficiary" as a beneficial (or equitable) owner  of the trust property, which receives income or the property itself either immediately (as soon as the contract is created) or eventually" [ http://en.wikipedia.org/wiki/ Trust_law ].

         The study of Montana Code reveals the more generalized meaning of the concept of "beneficiary". According to Article 72-1-103:  a beneficiary is an individual, who receives the property under a special document, the so-called "governing instrument". The term "governing instrument" denotes: "a deed, a will, an account with POD  designation, a security  registered  in beneficiary form (TOD), etc."[ http://data.opi.state.mt.us/BILLS/ 2003]. Accordingly, the category of "beneficiaries " is presented by: "devisees" ( persons indicated in a "will", who receive movable or immovable property under its provisions), "trust beneficiaries" (persons who take benefit under  trust contract ), "POD beneficiaries" ( beneficiaries of the account with POD designation, who receive it under a special form - an  account form  ), "TOD (transfer on death) beneficiaries" ( beneficiaries of the security registered in beneficiary form (TOD)) and etc.

        The ownership can be transferred to a "beneficiary" during a testator's lifetime or after his death. Therefore, the law of the United States differentiates two main types of a "trust": an "inter vivos trust" ( a trust contract created during the testator's lifetime) and a "testamentary trust" ( a trust created in an individual's will ). An object of any type of trust relationship is the "trust property". It is usually presented by "tangible property" and "intangible property" ( non-material property ).

       The institution of "trust" can be found in Georgian law. Articles 724-729 of "The Civil Code of Georgia" present the essence of "trust" and parties participating in trust relationships:  a "trustor"( sakutrebis mimndobi ) and a "trustee" ( mindobili mesakutre ). The property is entrusted by the "trustor" only during his (her) lifetime. Therefore, a "trust contract" (sakutrebis mindobis khelshekruleba  ) is created. Under this contract: "the principle (trustor) transfers the property to the trustee, who accepts and manages the property in compliance with the principle's interests" [The Civil ... 2002 :185]. Moreover, the specificity of the institution of "trust"  presents  the right of ownership in a "split" form: "some rights of the owner - the management and the disposition of the property - belong to one person (trustee), while other rights - receiving income and profit from the exploitation of the property ­- belong to another (trustor)" [ The Commentary ... 2001:  417]. The motive of a „trust contract" can be the owner's wish to delegate the authority of management ("to get rid of " the load of management)  in order to profit from the exploitation of the property . In any case, the property must be entrusted in accordance with the trustor's interest. This interest may imply making profit, increasing and maintaining the property and etc.

       An object of any type of  trust relationship is the "trust property" (  mindobili sakutreba ). It is usually presented by any sort of property: "non-material property" or "intangible property" ( aramaterialuri qonebrivi sikete ) and "things"( nivtebi ). A "thing" (  nivti  ) may be "movable" ( modzravi ) or  "immovable" ( udzravi ), while  "non-material property" unites  all those requirements and rights "which may be passed from one person to another or are intended for yielding a material profit to their owner, or entitling him (her) to demand anything from others" [ The Civil ... 2002: 49 ]. The ownership is managed by the trustee at risk and expense of the "trustor". In terms with third persons a trustee en- joys the owner's rights. He (she) is even entitled to make any kind of  deal. However, the trustee has no legal rights to sell the property unless the agreement between the parties provides otherwise.   

       Therefore, the institution of "trust" which is presented in the Civil Code of Georgia has specific features similar to Anglo-American "trust". The main difference lies in the fact, that trust relationships are created only during the trustor's lifetime (it means that  Georgian law is not familiar with the concept of "testamentary trust" ( anderdzismieri trasti ) ) and are carried out in behalf of the "trustor". Accordingly, the concept of "trustor" ( sakutrebis mimndobi ) is identified with the concept of "beneficiary" (  sargeblis mimgebi  or  benepiciari.

        The institution of "trust" which is presented in legal systems of the United States and Georgia differs significantly from the "estate trust management" established in Russian law. However, the contemporary legal literature considers "estate trust management" as a modification of a "trust".

       It's worth mentioning, that in the 90s of the 20th century there was an attempt of  implementation  of  Anglo-American "trust" in  the legal system of Russian  Federation. This attempt failed, because the principle of the "trust" was alien to the Russian type of civil law. Hence, this legal institution played a significant role in the formation of "estate trust management" (доверительное управление имуще- ством ) - a new institution of Russian law.

       Nowadays the comparative analysis of the institutions of "estate trust management" and "trust" facilitates the complete separation and demarcation of these legal units. In contrast to the legal system of the United States ( where the "trust" is regarded as an element of the Law of Obligation ) Russian "trust management" belongs to the Property Law. The main peculiarity of this relationship excludes the "split" of rights. Accordingly, "during the process of management the equitable title of holding the property is not transferred to the manager and the interest of the trustor is more protected than during the period of trust relationship" [ http://slovari.yandex.ru/dict/jurid/article /jur1/jur-1759.htm ]. Furthermore, an "estate trust  management" can be  considered as a  modification of a "trust", which was formed during the reception of this institution in the civil law countries of continental Europe.

       "The contract of estate trust management" is created by two parties: an owner of the property (учредитель  управления ) and a manager of the  property or a "trustee" ( доверительный  управля- ющий). The profit yielded from the actions  carried out under the contract is  transferred to the so-called  "выгодоприобретатель" (beneficiary). The objects of the "estate  trust  management" are presented by: "enterprises and other material complexes, particular objects (real property), rights certified by non-documentary securities, exclusive rights and other property"  [ http://www.russian-civil-code.com /PartII/ SectionIV/ SubsectionI/Chapter53.html]. Money can be an object of the "estate trust management". Hence, it can be transferred only in cases provided for by the law.

       The terms related to the "estate trust management" must be differentiated from the Russian terms denoting the institution of "trust". Generally, a "trust contract" is created by two parties: a "trustor" and a "trustee". The "trustor" is denoted by the terms "учредитель траста" or  "сеттлор", while the "trustee" is represented by the word combination  "доверительный собственник".The property transferred on trust is denoted  by the term "доверительная собственность" ( trust property ). Its legal owners are "выгодоприобретатели" (  beneficiaries ). In the Russian language the word  "выгодоприобретатель" is identified with the term "бенефициарий" ( beneficiary ).  It's worth mentioning, that the Russian words  "сеттлор" and "бенефициарий" derived from the English terms "settlor" ( means the "trustor") and "beneficiary". However, all the above-mentioned emphasizes Anglo-American origin of the institution of "trust".

        Furthermore, the comparative  analysis of the contemporary  legislations of Georgia, Russia and the United  States of America revealed the similarities and differences of Georgian, Russian and English languages. The lexical units related to the institutions of "estate trust management" and "trust" were demarcated. Therefore, the following general regularities were singled out:

1.        The "estate trust management" in comparison with the institution of "trust" "doesn't

                 belong to the Property Law. It is an institution of the Law of Obligation  [Commentaries,

                 1995:232]. Its main peculiarity lies in the fact that during the process of management the

                 equitable title of holding the property is not  referred to the  manager and the interest  of

                 the trustor is more protected. At the same time, an "estate trust management" is a mo-

                 dification of a "trust", which was formed during the reception of this institution in the

                 civil law countries of continental  Europe. From the above-mentioned systems of law, the

                 institution of the"estate trust management" is presented only in the Russian legislation,

                 while "trust" is an integral element of the legal systems of Georgia and  the United States

                 of America. In contrast to Montana Code, the Georgian legislation presents the institution 

                 of "trust" in the "more limited form". The main limitation lies in the fact, that trust relati-

                 onships are carried out only during the trustor's lifetime.  Furthermore, the Civil Code of                                     .               

                 Georgia doesn't operate with the concept of  the "testamentary trust" (anderdzismieri

                       trasti  ). The same can be said about the absence of the concept "beneficiary" ( benepiciari ),

                 that causes the identification of the "trustor" ( sakutrebis mimndobi ) and  the "benefi-

                      ciary" (sargeblis mimgebi piri  or the so-called  benepiciari . Accordingly, the "trust 

                     contract" ( sakutrebis mindobis khelshekruleba ) created during the trustor's  lifetime

                is   "directed" towards  making profit  in the interest of the legal owner of the property.

2.      The difference between the institutions of the "estate trust management" and the "trust" was reflected in the Russian terminological system (in contrast to the English lexical units). In the English  version of "The  Civil Code of the Russian Federation" "доверительное управление имуществом" ( estate trust management ) is denoted by the term "trust" ( as well as "доверительная собственность"), while "учредитель траста"( trustor ) is expressed by the word "settler" (as well as  учредитель  управления ). These terminological coincidences exclude the possibility of demarcation of the following totally different concepts: the "estate trust  management" and the "trust". Moreover, the Russian lexical units "сеттлор" and "бенефициарий" (which is also called  "выгодоприобретатель"( beneficiary )), originated from the English terms "settlor" ( trustor ) and "beneficiary". Factually, all the above-mentioned emphasizes Anglo-American origin of the institution of "trust" and considers the "estate trust management"  as a modification of the "trust", which was formed during the reception of this institution in the civil law countries of continental Europe.

        Finally, it is worth mentioning, that the change of the state structure of Georgia and Russia (from socialism to capitalism) influenced the legal systems of both countries. New legal institutions were established and these processes facilitated the emergence of the so-called "empty gaps" - the unnamed elements of the system of concepts. However, the on-going process of integration of the legal systems of the world will facilitate the improvement of the terminological sphere.


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