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Abstract

The Trust Act article 43 (1) provides that the trustee who breaches one of the duties should restore the trust property, but if it is impossible he should compensate the loss. If the specific restitution of the trust property is not possible, then the liability of the trustee is to pay sufficient damages to the trust estate to put it back to what it would have been had the breach not been committed. This liability of a trustee is statutory in nature, distinguished from the obligation of a contractual or tortious wrongdoer. But where the trust fund has suffered a loss due to the breach of trust, the trustee’s obligation to pay damages is similar to those of the contractual or tortious wrongdoer. Where the trustee paid out to someone who was not entitled, the trustee has to pay damages for the amount of the loss. Where the trustee commits a breach of trust and thereby incurs a liability for a certain amount of money, he is chargeable with interest at the legal rate unless otherwise provided. However the Supreme Court’s decisions held that the trustee who paid the trust money by negligence and incurred a loss is chargeable only with the amount paid out on the ground that the trustee’s obligation is not monetary in terms of the nature of the liability. But the money the trustee paid out is not the object of specific restitution, only the damages matter instead. The court’s reasoning is far from the nature of monetary obligations and the interpretation on the structure of restitution and damages in the article 43 (1). The standard for determining damages rests on the principle that the trust estate should be restored to the position it would have been in had the harm not occurred. So the amount of money with interest thereon and, if any, delay compensation should be ordered.