How should breaches of trust be remedied? Last month, in Adansonia Management Services Ltd v FWM Trustees Ltd & Ors, the Supreme Court of Mauritius clarified the legal foundation of trust liability and marked a definitive boundary between contractual, tortious, and equitable obligations.

Background Facts

The case stemmed from the Plaintiff’s attempt, as a trustee of the Kangela Trust, to recover losses allegedly caused by its predecessor, FWM Trustees Ltd, due to high-risk investments made without the settlor’s consent.

The Plaintiff chose to frame its claim in tort, when, according to the Defendants, the dispute arose squarely from a contractual relationship, hence triggering the principe de non-cumul. The principe de non-cumul is a foundational rule in civil law which bars a party from pursuing tortious remedies (faute délictuelle) for harm arising out of a contractual relationship.

(Refer to our previous case commentary for a deeper dive on the principe de non-cumul: https://www.dlapiperafrica.com/en/mauritius/insights/2025/Case-Commentary)

Plaintiff’s Position

The Plaintiff’s case was premised on three central assertions:

• A trust is not a contract, but is an equitable construct, which is governed by fiduciary obligations imposed by the Trusts Act 2001;
• The former trustee had abused its powers and committed a breach of fiduciary duty by investing in high-risk products without the consent of the settlor and contrary to his instructions;
• The wrongs complained of constituted an abuse of rights and breach of fiduciary standards under equity and the Trusts Act falling neither within the realm of a contractual breach nor a tortious fault.

Interestingly, the Plaintiff did not seek relief for breach of the Trust Deed per se, but instead framed the wrongful acts as tortious conduct in nature.

Defendants’ Arguments

The Defendants countered that the Plaintiff’s claim, being founded on faute and abus de droit, was inadmissible as it infringed the principe de non-cumul, on the following grounds:

• The relationship between the former trustee and the Trust was governed by a Declaration of Trust, which they argued was contractual in nature.
• Therefore, any claim for wrongful investment decisions should have been framed exclusively as a breach of contract or breach of trust, not as a tort. Paragraph 10 of the plaint with summons expressly characterised the Defendant’s conduct as a faute, thus contravening the principe de non-cumul.
• Following the Privy Council’s guidance in Mediterranean Shipping Co SA v Sotramon Ltd [2017] UKPC 23, the plaint should be struck out ex facie for having pursued an inadmissible legal path.

Court's Decision – A trust is not a contract and a breach of trust is not a tortious action

In determining the nature of a trust, the Court undertook a detailed comparative and doctrinal analysis, examining:  

• The Hansard debates from the introduction of the Trusts Bill in Parliament in 2001.
• Comparative insights from civil and common law jurisdictions, including references to Quebec, Louisiana, and Luxembourg.
• The Trusts Act 2001, particularly section 3 and Article 1100-1 of the Code Civil Mauricien, which defines the trust (fiducie) as a patrimoine d’affectation and not a contractual obligation.
• Academic works such as Underhill & Hayton and Maudsley & Burn, which emphasise the conceptual divergence between trust and contract.

The Court unequivocally held that: “Trust law is not the law of contract…It is also not the law of tort but it is the mechanism of Equity...” Accordingly, the Court emphasised that if a trustee breaches its fiduciary duties, remedies are available exclusively under Part VII of the Trusts Act and not under tort law or contract law.

Analysis

This judgment affirms that trusts constitute a distinct branch of equity, separate from the realms of contract and tort law. The case of Marks D. v First Island Trust Company Limited 2019 SCJ 225a was, until this judgment, considered the leading authority as concerns the nature of fiduciary breaches in Mauritius. However, this judgment goes further by resolving the longstanding ambiguity over whether such breaches may be pursued under the general delictual framework or whether they fall within a sui generis equitable regime. The Court’s conclusion that breaches of trust are not actionable in tort nor contract, but solely under the statutory and equitable principles of the Trusts Act 2001, marks a significant clarification for practitioners and litigants alike.

The implications for trust litigation in Mauritius are substantial. Trustees and beneficiaries alike must now frame their pleadings with heightened clarity, understanding that:

• Fiduciary duties stem from equitable norms and are statutorily codified under the Trusts Act 2001;
• Breaches thereof cannot be pursued through faute or contractual remedies; and
• The language and characterisation of claims in pleadings will be scrutinised to ensure compliance with the applicable legal regime.

Conclusion

This judgment strengthens Mauritius’ positioning as a jurisdiction where the trust concept is deeply rooted in equity, not merely superimposed onto the civil law scaffold. It signals a move towards greater conceptual fidelity in how trusts are interpreted and enforced. It remains to be seen, however, whether this judgement will withstand the scrutiny of an appeal.