Restoring trust in the trust: equity and the morality of trusting

Abstract This article reviews Roger Cotterrell’s landmark paper, ‘Trusting in Law: Legal and Moral Concepts of Trust’. That paper identified a shift from a moral conception of trusteeship based on the notion of a settlor reposing personal trust in a trustee, to an amoral systems-based conception of trusteeship, in which personal entrustment is largely absent. This article examines contractualised trusts, containing widely drawn exemption clauses, which commonly underpin commercial arrangements. It identifies two developments which have the potential to limit the amorality of the contractualised trust. The first is a reaffirmation of the existence of a non-excludable core of fiduciary obligations. The other is an enhanced understanding of the trustee’s accountability, owed to the court as well as to the beneficiaries, for the due administration of the trust. The developments demonstrate that equity has the resources to overcome contractual overreach in trusts law.