LE CLAUSOLE DI ESONERO DELLA RESPONSABILITA' DEL TRUSTEE

1. I lavori della Law commission - 2. Armitage v. Nurse - 3. La natura dell’intervento - 4. Le regole di condotta

1. I lavori della Law commission

Alla vigilia del massiccio intervento di riforma operato dal Legislatore inglese nel 2000, era opinione comune che il rigore dei tradizionali mezzi di tutela dei beneficiari e di controllo sull’operato dei trustee fosse difficilmente conciliabile con le moderne esigenze sociali e di mercato, tanto che le capacità operative di questi ultimi si ritenevano ormai compromesse e ciò anche a discapito dei beneficiari stessi. Fu anche a causa di questa situazione che nella prassi d’oltremanica si diffuse progressivamente il ricorso alle exemption clauses quale utile strumento per assicurare l’efficienza e l’autonomia di cui il trustee ha talvolta bisogno per poter adempiere puntualmente ai propri doveri;(1) il Legislatore della riforma, peraltro, non è intervenuto in materia disponendo limitazioni al loro utilizzo ed anzi, nel Trustee Act 2000, è previsto che “The duty of care does not apply if or in so far as it appears from the trust instrument that the duty is not meant to apply”.(2)(3) Da più parti, tuttavia, si avvertiva...continua a leggere 

2. Armitage v. Nurse

Fra i precedenti di maggiore importanza (16), deve indubbiamente annoverarsi il già citato caso Armitage v. Nurse poiché fu in questa occasione che la Court of Appeal giunse ad affermare il principio per cui il trustee può essere validamente sollevato dalle proprie responsabilità per negligenza ed in generale per ogni breach of trust, eccetto che per eventuali comportamenti dolosi. (17) Il Giudizio era stato instaurato su iniziativa del Beneficiario che contestava ai trustee il mancato adempimento dei propri doveri; il dibattito, tuttavia, era volto più che altro a determinare i limiti entro i quali le exemption clauses potevano ritenersi ammissibili all’interno dell’ordinamento inglese ed infatti si chiedeva alla Corte di stabilire se la seguente clausola fosse idonea a sollevare i convenuti da tutte o da alcune soltanto delle responsabilità loro ascrivibili: no Trustee shall be liable for any loss or damage which may happen to Paula’s fund or any part thereof or the income thereof at any time or from any cause whatsoever unless such loss or damage shall be caused by his own actual fraud”. Interesse del Beneficiario era ovviamente quello di...continua a leggere 

3. La natura dell’intervento

Nel Consultation Paper del 2003 erano proposti diversi modelli di regolamentazione che, secondo un primo orientamento della commissione, dovevano essere trasfusi in strumenti di tipo legislativo. Dato atto del ruolo svolto dalle exemption clauses nel contesto dell’ordinamento inglese, (30) la Law Commission osserva che i trustee professionisti, i quali vantano esperienza e competenze tali da giustificare la remunerazione dei loro servizi, devono comunque dimostrarsi all’altezza delle aspettative in loro ragionevolmente riposte e che dovrebbe quindi negarsi l’efficacia di quelle disposizioni volte ad escluderne la responsabilità in caso di condotta negligente. Peraltro, onde evitare la formulazione di clausole elusive di tale divieto e premesso che l’eventuale limitazione dei doveri a carico del trustee (o l’estensione dei suoi poteri) non possono essere certo ritenute a priori invalide, la commissione ha proposto che...continua a leggere 

4. Le regole di condotta del Trustee

L’adeguamento dei professionisti alle nuove regole di condotta ha un impatto completamente diverso rispetto ad un ipotetico intervento da parte del Legislatore (48) e ciò in quanto il mancato adempimento dei doveri di informazione non incide sulla validità o l’efficacia delle disposizioni configurando, invece, un mero illecito disciplinare con la conseguenza che i trustee (anche quelli eventualmente succeduti al primo) potranno sempre contare sull’efficacia delle exemption clauses senza dover per questo fornire alcuna prova in merito alla qualità dell’informativa a suo tempo fornita al disponente o al grado della sua consapevolezza. La sopravvivenza delle exemption clauses ad ogni possibile contestazione circa il mancato adempimento dei doveri di informazione consente quindi di preservare la caratteristica flessibilità del trust oltre che la massima efficienza operativa e decisionale; persino il temuto incremento dei costi (sia in termini di tempo che in senso strettamente economico) viene così bilanciato dal mancato bisogno di assicurarsi con largo anticipo una adeguata prova di conformità della propria condotta. D’altro canto, l’affidamento dei necessari poteri sanzionatori ai competenti organi professionali e di regolamentazione implica che ... continua a leggere 

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(1) Cfr. The Law Commission, Trustee exemption clauses, London, 2006, p. 17; P. Luxton, Trustee Exclusion Clauses: Lost in the Heather?, in E. Cooke, Modern Studies in Property Law, Vol. I, Oxford, 2001, pag. 72 e ss.

(2) Trustee Act 2000, Sched 1, para 7.

(3) Trust Law Committee, Consultation Paper n. 171, London, 2003, p. 1 e ss.

(4) Cfr. M. Monegat, G. Lepore, I. Valas, Trust, aspetti sostanziali e applicazioni nel diritto di famiglia e delle persone, Vol. I, Torino, pagg. 171 e ss.; M. Lupoi, Istituzioni del diritto dei trust e degli affidamenti fiduciari, Padova, 2010, p. 103 e ss.; A. Moja, Il trust nel diritto civile e tributario, Rimini, 2007, p. 37 e ss.; F. Rota, G. Biasini, Il trust e gli istituti affini in Italia, Milano, 2007, p. 54 e ss.

(5) «The first matter to consider is what constitutes a trustee exemption clause. In broad terms, there are two different kinds of clause. The first is the typical clause like that in Armitage v Nurse which excludes the liability of the trustee for having committed a breach of trust. In this case there is a duty, the duty is breached, and were it not for the clause, there would be a liability to the beneficiaries. However, the clause takes away that liability or in some way mitigates or reduces it. The second kind of clause is one which does not exclude the liability, but excludes the duty, or at least reduces it, in the first place. Logically, such a clause ought to be considered prior to that which excludes liability, for, if there is no duty, there can never be a liability. In this paper we consider both types of clause. Because the second type of clause may produce the same substantive effect as the first, one’s initial reaction is to think that any reform of the law must cover both types, although one has to consider whether outlawing clauses that cut down trustees’ duties will lead to too great a loss in the flexibility and utility of the trust concept.» Trust Law Commitee, Consultation Paper, Trustee exemption clauses, London, June 1999, p. 2.

(6) The Law Commission, Trustee exemption clauses, op.cit, p. 17.

(7) «The present organisation of the law on trustee exemption clauses contains one tremendous paradox, namely that the more professional a trustee is, the more likely she is to have a term included in the trust instrument which governs her action to exclude her liability when she acts negligently in the discharge of her fiduciary duties; whereas, a non-professional trustee who would probably not know that such a provision could be included in a trust instrument would therefore be held fully liable for breach of trust if she causes some loss to the trust despite never having held herself out as being a professional trustee in the first place. Thus, the qualified and experienced professional trustee escapes liability for causing loss completely, whereas the non-qualified and inexperienced trustee will bear full liability. There is something intuitively wrong with that, I would Suggest.» A. Hudson, Equity and Trusts, Abingdon, 2009, p. 380.

(8) Cfr. M. Monegat, G. Lepore, I. Valas, Trust, aspetti sostanziali e applicazioni nel diritto di famiglia e delle persone, Vol. II, Torino, pagg. 429 e ss..

(9)  http://lawcommission.justice.gov.uk/

(10) La Chancery Bar Association ha fornito, ad esempio, i seguenti casi pratici: «(1) A testator’s will grants his widow a life interest in the estate with remainder to his children by a previous marriage. If there is hostility between the children and the step-mother, the trustee may be in a difficult and potentially risky position. It may be legitimate for that trustee to shield itself from the “warring factions” by invocation of a trustee exemption clause. Although a court may be slow to find negligence in such a case, the trustee still needs the comfort of a trustee exemption clause to be able to act decisively, and may be reluctant to take on the trusteeship without one. (2) Shares in a private company have been settled on trust with the intention that they should be retained as the principal trust asset. An exemption clause would protect the trustees against accusations that they failed to sell the shares and diversify the investments of the trust fund.» The Law Commission, Trustee exemption clauses, op. cit., p. 29.

(11) «Indeed, the Financial Law Panel responded to the CP with a substantial paper requiring any new legislation not to apply to commercial trusts, where a ring-fenced fund is a crucial part of otherwise contractual arrangements. The Law Commission seems likely to be sympathetic to this so that the new legislation, following the approach in other regulated areas, will deal, so to speak, with the “retail” or “consumer” market, not with the “wholesale” financial market, but there is a great difficulty formulating a definition of “commercial trusts” distinguished from other trusts. Query, therefore, whether in a pragmatic approach any new legislation should not apply where the settlor is a corporation (with anti-avoidance provisions to deal with trustees who require individuals to transfer assets to the trustee via a company, so that assets held by a company on trust for S absolutely – so avoiding tax problems for S’s transfers to the company – and transferred by the company to a trustee are regarded as transferred by S)» D. Hayton, England, Atti del Terzo Congresso Nazionale dell’Associazione “Il trust in Italia”, Roma, 21-23 ottobre 2005, T. & A. F., 2006, p. 33.

(12) «It was pointed out that there is a stronger argument for limiting the autonomy of a settlor than a contracting party, because a trust gives rise to fiduciary duties and it is to non-contracting parties (the beneficiaries) that those duties are owed. It should also be borne in mind that, as Armitage v Nurse confirmed, there are already some restrictions on settlors’ ability to exempt trustees from liability, so the question is one of extent.» The Law Commission, Trustee exemption clauses, op. cit., p. 30.

(13) Trust Law Committee, Consultation Paper: Trustee Exemption Clauses, London, 1999.

(14) Trust Law Committee, Consultation Paper n. 171, op. cit..

(15) Cfr. Stuart Bridge (Law Commissioner), trustee exemption clauses report, 16 luglio 2006 (launch event), http://www.lawcom.gov.uk/; Lord Falconer, the law Commission’s Review of Trustee Exemption Clauses, Discorso del 19 Luglio 2006, http://www.lawcom.gov.uk/.

(16) P. Luxton, Trustee Exclusion Clauses: Lost in the Heather?, in E. Cooke, Modern Studies in Property Law, Vol. I, Oxford, 2001, pag. 61 e ss

(17) «Prior to this case there were doubts as to whether liability for gross negligence could be validly excluded by the terms of the trust. The Trustee Act 2000 does not make any attempt to regulate the use of trustee exemption clauses, the inclusion of which in trust instruments has become more common in recent years. The Trustee Act 2000 expressly states that the statutory duty of care does not apply: …if or in so far as it appears from the trust instrument that the duty is not meant to apply» C. Af Sandeberg, Exemption of Liability - Where to Draw the Line, Stoccolma, 2004, vol. 45, p. 288. V. anche Financial Markets Law Committee, Issue 62 – trustee exemption clauses, London, 2004, p. 32.

(18) (Segue) «With the sole exception of the last, which is a technical doctrine in which the word ‘fraud’ merely connotes excess of vires, it involves some dealing by the fiduciary with his principal and the risk that the fiduciary may have exploited his position to his own advantage.» Armitage v Nurse [1998].

(19) Cfr. M. Lupoi, op. cit., p. 192 e ss..

(20) «So far as the equity jurisdiction in cases of what is called fraud is concurrent only and exercised in actions for mere deceit apart from breach of special duty, an actual intention to cheat has now to be proved. But there are cases of other classes to which, as I have already said, the Court of Chancery undoubtedly did apply the term fraud, although I think unfortunately.» Haldane in Nocton v. Ashburton [1914], passaggio in parte citato in Armitage v Nurse [1998].

(21) Armitage v Nurse [1998]

(22) «The duty of the trustees to perform the trusts honestly and in good faith for the benefit of the beneficiaries is the minimum necessary to give substance to the trusts, but in my opinion it is sufficient. As Mr. Hill pertinently pointed out in his able argument, a trustee who relied on the presence of a trustee exemption clause to justify what he proposed to do would thereby lose its protection: he would be acting recklessly in the proper sense of the term.» Armitage v Nurse [1998]

(23) Armitage v. Nurse [1998], cfr. Grill v General Iron Screw Collier Co. [1866]. In questo senso anche Lord Denman CJ in Goodman v. Harvey [1836]: “Gross negligence may be evidence of mala fides but is not the same thing” (cit. in Armitage v. Nurse [1998])

(24) Cfr. C. Af Sandeberg, op.cit, p. 288: «In Scotland it is not possible to exclude liability for gross negligence, which is because Scottish law retains some concepts of Roman law including the principle that ‘gross negligence is equivalent to fraud or bad faith’, discussed in Midland Bank Trustee (Jersey) Ltd v. Federated Pension Services Ltd [1996] PLR 179».

(25) «The submission that it is contrary to public policy to exclude the liability of a trustee for gross negligence is not supported by any English or Scottish authority. The cases relied on are the English cases of Wilkins v Hogg (supra) and Pass v Dundas 1880), 43 LT 665; and the Scottish cases of Knox v Mackinnon (1888), 13 App. CAS. 753 and Rae v Meek (1889), 14 App.Cas 558; ; Wyman v Paterson [1900] AC 271; and Clarke v Clarke’s Trustees [1925] SC. 693. These cases, together with two other Scottish cases Seton v Dawson (1841) 4 D 310 13 and Carruthers v Carruthers [1896]AC. 659 and cases from the Commonwealth and America, were reviewed by the Jersey Court of Appeal in Midland Bank Trustee (Jersey) Limited v Federated Pension Services Limited [1996] Pensions Law Reports 179 in a masterly judgment delivered by Sir Godfray Le Quesne QC.» Armitage v. Nurse [1998].

(26) La decisione è stata aspramente criticata in ragione del fatto che il Trustee aveva in realtà conseguito un beneficio economico corrispondente al risparmio sui costi dell’assicurazione che, in mancanza della exemption clause, avrebbe certamente stipulato onde proteggersi da eventuali responsabilità (v. Hayton & Marshall, The Law of Trust and Equitable Remedies, para 9-311, cit. in The Law Commission, Trustee exemption clauses, op. cit., p. 21; Cfr. Beskerville v. Thurgood [1992] e Rutanen v. Ballard [1997] (cit. in The Law Commission, Trustee exemption clauses, op. cit., p. 21).

(27) Sul concetto di disonestà, v. anche Walker v. Stones [2001], Royal Brunei Airlines Sdn Bhd v. Tan [1995]. Più in generale, v. anche Wight v. Olswang (No 2) [1999/00], Barraclough v. Mell [2005] e Baker v. JE Clark & Co (Transport) UK Ltd [2006] (cit. in The Law Commission, Trustee exemption clauses, op. cit., p. 21). In quest’ultimo caso la Corte, data la natura squisitamente unilaterale dei doveri che discendono da un trust, rifiutò la tesi per cui nella fattispecie doveva ritenersi che la clausola di esonero della responsabilità fosse invalida in forza del Unfair Contract Terms Act del 1977.

(28)  Financial Services and Markets Act 2000, Art. 253, Avoidance of exclusion clauses. Any provision of the trust deed of an authorised unit trust scheme is void in so far as it would have the effect of exempting the manager or trustee from liability for any failure to exercise due care and diligence in the discharge of his functions in respect of the scheme.

(29) Pension Act 1995, Art. 33, Investment powers: duty of care. (1) Liability for breach of an obligation under any rule of law to take care or exercise skill in the performance of any investment functions, where the function is exercisable: (a) by a trustee of a trust scheme, or (b) by a person to whom the function has been delegated under section 34,cannot be excluded or restricted by any instrument or agreement.

(30) «We accept that to hold all trustees, whether lay or professional, accountable for negligence and to deny them resort to trustee exemption clauses where negligence is established would be to transform the nature of the trust obligation in English law» (Trust Law Committee, Consultation Paper n. 171, op. cit., p. 71).

(31) «We accept that this is an area of formidable difficulty where the tension between settlor freedom and beneficiary protection is very great. We doubt that it is possible here to be overly prescriptive in terms of the limits to be set on clauses which provide for duty exclusion and extended powers, and we believe that any regulatory intervention must be sophisticated and responsive to the particular circumstances of each case. It may be that the appropriate degree of flexibility can only be achieved by a provision to the effect that a trustee cannot rely upon a duty exclusion clause or an extended powers clause where the actions or omissions of the trustee are inconsistent with the purposes of the trust and it is unreasonable in the circumstances for the trustee to be exempted from liability for breach of trust. This would give the court the power to strike down duty exclusion clauses and extended powers clauses which are excessively wide in circumstances where the trustee is abusing his or her fiduciary position.» Trust Law Committee, Consultation Paper n. 171, op. cit., p. 74.

(32) Trust Law Committee, Consultation Paper n. 171, op. cit., p. 56.

(33) Trust Law Committee, Consultation Paper n. 171, op. cit., p. 38 e ss.

(34) «One respondent pointed to the position in the United States, where many trustees refuse to accept discretionary powers in trust deeds on the basis that there is too much risk in operating them. If alternatively the powers remained but trustees became reluctant to use them, it would be difficult for beneficiaries to establish a breach of trust based solely on a trustee’s refusal to exercise a discretionary power» (The Law Commission, Trustee exemption clauses, op. cit., p. 45).

(35) «we accept that there is a risk that concerns about potential liability would impact on the way trustees conduct trust business. This might not in all respects be a bad thing: it will not always be in the overall interests of beneficiaries for trustees to be able to act quickly and cheaply if in doing so they act negligently. However, it is also true that less flexible trusteeship, increased legal costs and slower trustee decision-making would be unwelcome developments. Most beneficiaries would agree that the best trustees are prepared to act decisively and expeditiously in order to serve the beneficiaries’ interests» (The Law Commission, Trustee exemption clauses, op. cit., p. 45).

(36) «The proposed changes to the law would have a substantial effect on broader financial practice, and be damaging not only to the corporate sector in general, but also to London’s position as an international centre for corporate finance. This may in turn lead to significant losses of revenue for the City. As a large amount of the financial business based in London is international, there is no requirement for it to be governed by English law. English law is chosen as it is considered the most favourable, and could easily be discarded if this were no longer considered to be the case. It could be argued that the competitive position which English law occupies on the international stage depends largely on the contractual certainty which agreements governed by English law currently enjoy. In the longer term, it is likely that the considerable areas of financial business currently based in London and dependent on traditional English trust law may move their operations to less restrictive jurisdictions» Financial Markets Law Committee, op. cit., p. 2.

(37) The Law Commission, Trustee exemption clauses, op. cit., p. 44

(38) «Consultees gave numerous examples of clauses which are necessary and appropriate in the particular circumstances, such as: Private Trusts (1) when apportioning trust receipts between income and capital beneficiaries, the trustee is under no duty to consider the interests of the remaindermen; (2) when the trustee is not obliged to monitor what directors are doing where a substantial majority of the shares in a company is owned by the trustee; Commercial Trusts (3) in unsecured bond issues, when trustees who have received a certificate confirming that no event of default has occurred are entitled to assume (unless they have actual notice to the contrary) that no such event has in fact occurred; (4) in security transactions, when trustees are not obliged independently to investigate title to the charged assets; and (5) in securitisation transactions, when trustees are not required to monitor or supervise the activities of an administrator or servicer» (The Law Commission, Trustee exemption clauses, op. cit., p. 51).

(39) La stessa commissione già aveva preventivato tale rischio « We realise that this approach does give the court an element of discretion. It is tantamount to saying that the trustee can shelter behind a duty exclusion clause or an extended powers clause only where it is reasonable in the circumstances that it should do so. It may be argued that this element of flexibility, necessary in our view to deal with the immense variety of trusts, would introduce some uncertainty into the area. While we accept that this may be so, we do not consider this uncertainty excessive, and we do consider it justifiable. An element of uncertainty is inevitable wherever the court is called upon to examine the conduct of individuals, in this case trustees, after the event, in any attempt to discern whether they have been negligent» (Trust Law Committee, Consultation Paper n. 171, op. cit., p. 74).

(40) The Law Commission, Trustee exemption clauses, op. cit., p. 56.

(41) «See Barry v Butlin (1838) 2 Moo PCC 480, 485. In that case Parke B expressed himself as follows: “…[…]… it cannot be that the simple fact of the party who prepared the Will being himself a Legatee, is in every case, and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will, unless additional evidence is produced to prove the knowledge of its contents by the deceased....All that can be truly said is, that if a person, whether attorney or not, prepares a Will with a Legacy to himself, it is, at most, a suspicious circumstance, of more or less weight, according to the facts of each particular case; in some of no weight at all…” 52. In the present case, it is of no weight at all. It cannot excite suspicion that a solicitor, when drafting a will for a client, even in the contemplation that he may himself be appointed an executor and trustee, should include an exemption clause no wider than many similar clauses found in the precedent books. 53. The Plaintiffs seek to rely on American authorities, and invite us to follow their lead. But they have been unable to produce any clear authority to show that the American Courts would refuse to allow the draftsman to rely on an exemption clause where there was no reason to think that the testator did not know and approve of its inclusion in the will. Indeed, the contrary is the case. In Scott “The law of Trusts” (4th.ed) pp.393-5, it is made clear that the mere fact that the person named as a trustee was the draftsman of the trust instrument is not sufficient to make an exculpatory provision ineffective. It is, of course, otherwise if the draftsman inserted the provision without calling the settlor’s attention to it and knowing that the settlor did not realise its effect. It is hardly necessary to add that the same is true in our law» (Bogg v. Raper 1999]).

(42) «To deal with the settlor-billionaire’s special trust with himself as discretionary portfolio manager one could allow ouster clauses so long as the settlor was advised to obtain (or did actually obtain) independent legal advice. One might query whether something extra (perhaps a Code of good practice subscribed to by members of the Association of Corporate Trustees and trustees regulated under the Financial Markets & Services Act 2000) is needed to prevent all professional trustees taking this approach for all trusts whether of great or small value. However, regulated trustees would normally not be able to use such a broad clause as in the billionaire’s trust because it would not be suited to the settlor’s financial circumstances and purposes. In an exceptional case where an advised and therefore knowledgeable settlor is prepared to agree a very wide ouster clause, then why not respect this knowing choice as consistent with the settlor’s overall purposes and reasonable in all the circumstances?» D. Hayton, op. cit., p. 34.

(43) v. The Law Commission, Trustee exemption clauses, op. cit., p. 63 e ss..

(44) «We therefore believe that a sophisticated statutory approach could ameliorate some of the problems associated with settlor-oriented formalities-based statutory regulation. However, we believe that to some extent these problems are inherent in any statutory scheme, however sophisticated, which renders trustees’ ability to rely on an exemption clause uncertain. The complexities associated with duty modification clauses, in particular, would remain an obstacle to any statutory approach which could bar reliance on them. Any such statutory scheme would have to overcome the difficulties of identifying duty modification clauses, analysing their effects, and distinguishing those performing a legitimate duty-defining function from those seeking to circumvent restrictions on liability exclusion. While we do not dismiss the possibility that a sophisticated statutory approach to ensuring settlor awareness could operate effectively, we remain unconvinced that such a scheme could satisfactorily overcome all the defects described above, and, in particular, maintain certainty for the trustees while minimising costs.» The Law Commission, Trustee exemption clauses, op. cit., p. 68.

(45) Cfr. C. Af Sandeberg, op.cit, p. 289 su: Exemption Clauses and the Theory of Reliance.

(46) «(Segue) This is something I feel strongly the Law Society should review. However it is not a matter for statutory regulation. It would be desirable for the professional bodies regulating the activities of other professional advisers to undertake a parallel review with the Law Society in respect of their own professions» The Law Commission, Trustee exemption clauses, op. cit., p. 69.

(47) «Trustee exemption clauses have been considered by the Law Reform Commissions in Ontario, England and New Zeland. In British Columbia they were considered by the Law Institute’s Committee on the Modernisation of the Trustee Act. In each jurisdiction a different view has been taken as to the wisdom of prohibiting such clauses. The Ontario Law Reform Commission was the only Commission to recommend that all exculpatory clauses be deprived of effect. The New Zeland Commission recommended that such clauses not be available to trustee for reward. They recommended against removal of protection for lay trustees on the basis that they ‘may well not either realize the need to insure or find it difficult to obtain cover’. The New Zeland Law Commission, Report 79, 2002, Some Problems in the Law of Trusts. The British Columbian solution was to give the Court the right to override exclusion clauses» M. Bryan, Private law in theory and practice, Abingdon, 2007, p. 312.

(48) Cfr. The Law Commission, Trustee exemption clauses, op. cit., p. 68 e ss.

(49) In senso critico, è stato tuttavia osservato che «The law Commission has made proposals for an extra-statutory change to the law dealing with the exclusion of trustees’ liabilities in its paper “Trustee Exemption Clauses”. The somewhat toothless [corsivo di redazione] proposal that was made in this paper was to avoid legislation imposing duties on trustees and instead to rely on a statement of best practice whereby professional trustees should be required to bring any exclusion clause to the attention of the settlor at the time of creating the trust and to ensure that the settlor understands its effect. Thus, a welcome distinction is drawn between professional and non-professional trustees. However there is no meaningful obligation – certainly no legal obligation – to be placed on trustees to control their use of exclusion clauses» A. Hudson, op. cit., p. 380.

(50) «The England and Wales Committee of the Society of Trust and Estate Practitioners has approved the following rule which will in due course be annexed to the STEP Code, together with guidance notes on its detailed application. STEP RULE (1) Where a member prepares, or causes to be prepared, a will or other testamentary document or a trust instrument (each an “Instrument”), or is aware of being named as an original trustee or executor in an Instrument: (i) in which he, or any trustee or executor, is entitled to remuneration under the terms of the Instrument; or (ii) where he has, or may expect to have, a Financial Interest in the trusteeship or executorship of the trust or will or the preparation of the Instrument; and (b) any one or more of the circumstances described in paragraph 2 below applies (together "the Disclosable Circumstances"), such member shall use his reasonable endeavours to ensure: (i) that he or another shall have notified the Settlor of the provisions in the Instrument or the original trustee or executor’s terms and conditions relating to the Disclosable Circumstances; and (ii) that he has reasonable grounds for believing that the Settlor has given his full and informed acceptance of such provisions prior to his execution or approval of the Instrument. (2) The Disclosable Circumstances referred to in paragraph 1 above are the existence of provisions in the Instrument or the original trustee or executor’s terms and conditions the effect of which limit or exclude the liability of a trustee or executor for negligence. (3) In this rule (a) "Financial Interest" means circumstances where the member benefits or reasonably expects to benefit (whether directly or indirectly) from providing a service as trust advisor or as trustee. (b) "Settlor" means any person who would be a principal initial settlor in relation to a settlement, or at whose directions the Instrument is created. (4) This rule shall be subordinate to any legislation or other binding provision of law in any jurisdiction where the member shall practice and shall only apply to Instruments governed by the law of England and Wales». Cit. in The Law Commission, Trustee exemption clauses, op. cit., p. 119.

(51) The Law Commission, Trustee exemption clauses, op. cit., p. 73.

(52) The Law Commission, Trustee exemption clauses, op. cit., p. 35 e ss.

(53) The Law Commission, Trustee exemption clauses, op. cit., p. 74.

(54) The Law Commission, Trustee exemption clauses, op. cit., p. 74.

(55) «Over time, the commercial trust has developed its own rules, which are recognised and accepted by all those who are party to it. Such trusts are negotiated by expert parties and their provisions scrutinised. The trustee acts as an independent party playing a crucial bridging role between the parties in a wide range of corporate finance activities. These trustee relationships are in many ways closer in substance to contracts between sophisticated participants with the freedom to contract, than to a traditional trust relationship. The trust deed is thus a blend of contractual provisions and those which would be found in a traditional trust. The beneficiaries in this case are market professionals who are aware in advance of the risks attached and of the duties and powers of the trustee. Negotiation may not take place individually for each particular trust transaction, but market practice has built up over many years and in this way equilibrium has been reached between the parties involved. The Commission’s proposals would have the effect of preventing mature parties from choosing the terms on which they contract» (Financial Markets Law Committee, op. cit., p. 1).

(56) Cfr. “commentary on customary exculpatory provisions in an international bond issue trust deed” in Financial Markets Law Committee, op. cit., p. 22 e ss..

(57) Cfr. note 28 e 29. V. anche s. 192 Companies Act 1985: «This provision is based on the recommendation in 1945 of the Cohen Committee on Company Law Amendment. The Committee recommended that a general exemption from, or indemnification against, liability should be prohibited, but that 'enabling' clauses (equating to the Law Commission's duty exclusion and extended power clauses) should be permitted. Section 192 itself applies only to issues of debt securities by UK companies but wording replicating its effect is included by market practice in most issues, irrespective of who the issuer is. The section thus extends far beyond the express confines of the types of trust deed to which the section applies, as well as ensuring that trustees do not have the wide-ranging liability exemptions the Consultation Paper speaks of. It is accordingly the opinion of the working group that, in relation to the wholesale financial markets, sufficient protection for beneficiaries (at least in relation to transactions in the securities markets) is already provided by section 192. However, the working group does accept that there may be an argument for extending the categories of transactions to which the statutory provisions apply» (Financial Markets Law Committee, op. cit., p. 4).

(58) The Law Commission, Trustee exemption clauses, op. cit., p. 76.

(59) The Law Commission, Trustee exemption clauses, op. cit., p. 76.

(60) The Law Commission, Trustee exemption clauses, op. cit., p. 80.

(61) «I am pleased to announce the Government’s acceptance of the recommendations made by the Law Commission in its 2006 report “Trustee Exemption Clauses” (Law Com 301). Briefly, the Law Commission recommended that the Government should promote the adoption by professional and regulatory bodies in the trust industry in England and Wales of a model rule of practice relating to the inclusion in trust documents of clauses limiting the liability of trustees for the consequences of their actions. The recommended model rule provides that a paid trustee or trust draftsman proposing to include such a clause should take reasonable steps to ensure that the person creating the trust is aware of the meaning and effect of the clause before the trust is created. Model rules to this effect have already been widely adopted by leading regulatory and professional bodies but the Government will be promoting further uptake by writing directly to the relevant regulatory and professional bodies to urge them to adopt the approach recommended by the Law Commission.» Written Ministerial Statements for 14 September 2010, http://www.publications.parliament.uk/pa/cm/cmtoday/cmwms/archive/100914.htm#d2e164.

(62) House of Lords, Parlamentary Debates, V serie, Vol. DCCXII, III vol. sess. 2010-11, 5 ottobre 2010, http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/101005-wms0001.htm.

(63) «The Law Commission Act 2009, which came into force on 12 January 2010, amends the Law Commissions Act 1965 to place a duty on the Lord Chancellor to report to Parliament each year on the extent to which Law Commission proposals have been implemented by the Government.» Report on the implementation of Law Commission proposals, 24 Gennaio 2011, p. 3.

(64) «The report examined the use of trustee exemption clauses which are provisions in a trust instrument which exclude or restrict a trustee’s liability for breach of trust. Such clauses are capable of protecting trustees from the consequences of any actions or omissions, however negligent, provided they have not acted dishonestly. The recommendations contained within this report have been accepted and implemented by the Government. Statements were made in the House of Commons on 14 September 20106 and in the House of Lords on 5 October 2010.» Report on the implementation of Law Commission proposals, 24 Gennaio 2011, p. 6.