Die invloed van die stipulatio alteri op die inter vivos trust in die Suid-Afrikaanse reg: voorgestelde oplossings vir beter regulering

[摘要] English: The deed of trust in terms of which an inter vivos trust is established is currently dealt with as a species of the contract for the benefit of a third party (stipulatio alteri) in South African law. Therefore, the stipulatio alteri serves as (an artificial) framework to explain the functioning of the inter vivos trust with reference to Roman-Dutch law. However, in the course of its historical development in South Africa, certain unsound consequences have been attached to the stipulatio alteri and, more particularly, the acceptance requirement, which have a significant impact on the understanding of the rights acquired by the third party to the agreement. A sound (accurate) interpretation of the stipulatio alteri is required to provide legal certainty regarding the consequences of acceptance, and the rights obtained by the third when (s)he accepts. Nevertheless, the unsound interpretation of the stipulatio alteri is currently utilised to assist in explaining the inter vivos trust in terms of certain contractual aspects of the trust deed, the beneficiary's acceptance and concomitant rights, as well as the amendment or revocation of the deed of trust. This causes multiple problems for the functioning of the inter vivos trust, which have been exacerbated by the courts' poor understanding of the functioning of the stipulatio alteri and its application to the inter vivos trust. An extremely uncertain application of the inter vivos trust has arisen as a result, particularly in respect of the beneficiary's rights. In addition, sight should not be lost of the trust law features of the inter vivos trust. This requires a careful balance between, on the one hand, the fiduciary duty in terms of the law of trusts and, on the other, the contractual aspects.Apart from suggesting a potential sound interpretation of the stipulatio alteri, this research also proposes further solutions to the uncertainties and problems currently experienced in regulating the inter vivos trust.

[发布机构] University of the Free State