Private Law Theory

ABSTRACT
The trust may be English law’s ‘greatest and most distinctive achievement … in the field of jurisprudence’ but it is likely to also be its most confounding. A fierce debate has raged for more than a century over whether a beneficiary’s interest under a trust is proprietary or not. Often cast in dualistic terms – is the trust proprietary (or in rem) or is it obligational (or in personam)? – the dispute is more complex and sophisticated than it first appears. Upon closer examination, some of the disagreements are less substantive and more semantic. At the heart of this debate lies the ambiguity inherent in the meaning of the word ‘property’ itself. Yet, although equitable ‘property’ may not be identical to legal ‘property’ (indeed, tangible legal ‘property’ is fundamentally different from intangible legal ‘property’) does not make it any less properly regarded as ‘property’. Rather than being a mere mimic or metaphor, equitable ‘property’ simply secures exclusive control to a resource in a different, indirect, manner for equitable ‘owners’. ‘Property’ is a polyseme, where a word has different meanings but those meanings are related so that even though it is different from legal ‘property’, it is no less truly ‘property’. The primary objective of this clarification is to serve as a via media to reconcile some of the apparently opposing views that have arisen in this debate. However, those taking the proprietary view who suggest reform of underlying rules on the basis that beneficial interests are proprietary and thus should have certain effects are mistaken because they have failed to appreciate the importance of the different forms of exclusion that underpin the polyseme that is ‘property’. This understanding of equitable ‘property’ also carries implications for the English Law Commission’s conception of digital assets as third things that supposedly carry no rights until they are interfered with. If so, then they cannot be the subject-matter of trusts, contrary to current authorities.

Low, Kelvin FK, ‘Property’ as Polyseme and Its Implications for Trust ‘Property’ (August 27, 2024), Journal of Equity, special issue on ‘Equitable Property’, Forthcoming.