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The Beneficiary’s Ownership Rights

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Irit Samet discusses that a liberal perspective on property rights can resolve a century-old dispute about the beneficiary’s interest in the trust.

Image courtesy of interviewee. March 15, 2024

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This video video discusses a paper co-authored by the speaker and Professor GaN from Berkeley, focusing on the concept of trusts, a significant legal institution in English law. The paper addresses the nature of beneficiaries' rights to trust property, which remains a contentious topic.

The speaker outlines two main perspectives: the orthodox view, which asserts that beneficiaries have a proprietary interest in trust property, and the personal rights view, which contends that beneficiaries possess personal rights instead. Both views acknowledge that beneficiary rights lie between personal and proprietary rights but interpret their nature differently.

This video video highlights a stalemate in scholarly debate, attributed to a common misunderstanding of property rights. The authors argue that recognizing a liberal perspective on property rights can help resolve this impasse by affirming the proprietary status of beneficiaries’ rights as part of a broader framework of legal ownership.

The discussion extends to the implications of these theories, particularly regarding the rights of beneficiaries in contexts such as bankruptcy, where the speaker argues that beneficiaries should be seen as residual owners of the trust property, thus justified in claiming it ahead of other creditors.

Overall, the paper aims to challenge existing interpretations of beneficiary rights and advocate for a more nuanced understanding of property and trust law that incorporates relational justice and the complexities of modern ownership structures.

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Here are some articles that discuss similar themes related to trusts, beneficiary rights, and property law:

1. **The Nature of Beneficiary Rights in Trusts: A Comparative Analysis**
This article explores different legal traditions regarding beneficiary rights in trusts, comparing the Anglo-American approach with civil law jurisdictions. It delves into the proprietary versus personal rights debate, analyzing how different systems interpret the nature of beneficiaries' interests.

2. **Trusts, Property Rights, and Equity: Examining the Intersection**
Focusing on the relationship between trusts and property rights, this article examines how equity has influenced modern property law concepts, including the rights of beneficiaries. It reviews historical developments and contemporary challenges, including bankruptcy implications.

3. **Beneficiary Rights in Insolvency: A Critical Perspective**
This piece discusses the specific convideo of beneficiary rights in insolvency situations. It evaluates how beneficiaries of trusts are treated in bankruptcy proceedings and argues for a reevaluation of their status as residual claimants.

4. **Revisiting the Personal Rights vs. Proprietary Rights Debate in Trust Law**
This scholarly work critically analyzes the ongoing debate between those who view beneficiary rights as personal rights versus those who assert proprietary interests. It proposes a framework that reconciles these divergent views within the convideo of modern trust law.

5. **Relational Justice in Trust Law: Implications for Beneficiaries**
This article introduces the concept of relational justice into trust law discussions, arguing that a deeper understanding of relationships can inform and improve the treatment of beneficiaries. It suggests reforms that take into account the complexities of trust relationships in various legal convideos.

6. **The Doctrine of Trusts: Evolving Perspectives and Future Directions**
Addressing the historical evolution of the doctrine of trusts, this article highlights current debates in the field, focusing on beneficiary rights and property ownership. It calls for a comprehensive reassessment of trust law principles in light of contemporary social and economic dynamics.

7. **Trusts and the Law of Property: A Contemporary Challenge**
This publication discusses the challenges posed to traditional notions of property law by evolving trust law doctrines. It critiques existing interpretations of beneficiary rights and proposes new legal frameworks to address these challenges.

These articles collectively cover the themes presented in your video, including the analysis of beneficiary rights, the orthodox vs. personal rights perspectives, and the implications for modern legal frameworks.

X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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So I just want to clarify that this is a paper I wrote

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with Professor GaN from Berkeley.

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Uh, so it's a, it's a shared work.

00:06.945 --> 00:08.965
Um, so the trust is one of the oldest

00:09.105 --> 00:11.725
and most federated legal institution in English law.

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Um, it is an essential

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and really highly popular form of property holding

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that is being used in response to a wide spectrum

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of human needs and aspirations.

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Um, and nevertheless, one of the most fundamental aspects

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of the trust remains under determined

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and until recently, really under discussed.

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Um, and this is the nature of the beneficiary's right

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to the trust property.

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So while it's clear that the trustee has,

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a proprietary interest in the trust property because he

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or she's the legal owner,

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the right which the equity confers in the property

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to the beneficiary has changed in times quite dramatically

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over this really long development of, of the trust.

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And it is still as it is now,

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it is still far enough from the conventional property

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interests that we know, in a way that gives rise

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to a deep controversy about its nature.

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So on the one hand, we have the Orthodox view

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that is being repeated in case law

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and endorsed really by many older, as well

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as more recent scholarship

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that the beneficiary has a proprietary interest

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in the trust property.

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Um, but others, inspired mainly

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by Frederick Maitland from the 19th century may maintained

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that the beneficiary's right, just

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as it was at its inception in medieval times,

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is actually a personal right rather than proprietary.

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So of course, the distinction between proprietary

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and personal right, is not, really an all or nothing.

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One rather rights with regards

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to legal things lying across a spectrum

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that runs from a very strong property,

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right on the one hand, and the pure per purely

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personal ones on the other hand.

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Now, both camps, that is those who believe that the,

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beneficiary's right, is proprietary,

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and those who believe

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that the beneficiary's right is personal.

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They agree that the beneficiary's right along this spectrum

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of, property

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and personal right, it lies close to the middle, yeah,

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to the border between personal property rights.

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But according to the Orthodox view,

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the beneficiary increasingly widening power

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to enforce her right on third parties, as well

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as some other features like the power to assign the right

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or the sonder vote rights in English law,

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that allows the beneficiary to collapse the trust

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and claim property under certain conditions.

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And some other features of this, right?

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That mean that the right

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of the beneficiary has acquired proprietary

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status, albeit a weak one.

02:41.545 --> 02:43.645
So for them, it is a property, right?

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A weak property, right?

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The, other count that is those that believe

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that the right is personal, believe

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that the serious limitations on the beneficiary's power

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to enforce the right on third party,

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mainly the limitation, with regard to the

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Baf fade purchaser for value, that is

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bon fade purchaser from the trust of the legal title,

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from the trustee gets good title in,

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which is very different from how, ordinary,

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ownership in common law works.

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That means that the beneficiaries, right,

03:16.275 --> 03:18.005
remains a personal right,

03:18.525 --> 03:20.125
although it is very strong personal, right?

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Because it can be enforced against third parties in a way,

03:22.715 --> 03:24.765
most personal rights cannot be.

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So, a new version of the personal right view, the,

03:29.075 --> 03:32.485
McFarland and Stevens rights against Right Theory,

03:32.605 --> 03:35.485
explains the strength of this personal right.

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In terms of persistence, they say that the beneficiary's,

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right, although it is personal, right,

03:41.105 --> 03:43.285
it is a very special personal, right, in the sense

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that it attaches itself to the trustee's proprietary right

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in the property, in the trust property.

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And this very unique form structure they say is the hallmark

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of the trust as the legal institution.

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Um, and this is the really the ingenuity

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of equity in creating, the trust,

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but their right, their, their view is still, part

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of the contractual view.

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So that would give you the, the the kind of,

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background, the scholarly background that you need

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to understand, the arguments that we make in the paper.

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But the argument between these two camps, the proprietary

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and the personal reached a kind of impasse

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because both parties cite the differences between the core

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personal or proprietary, right?

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As a proof that the beneficiary's right,

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belong in the other category.

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So the personal, right, those who believe

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that it's a personal right, say, look, it is much more,

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it, it, it is stronger than personal than other,

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personal rights, but it is very limited in the way it can be

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enforced on third parties.

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So that means that it's a personal, right?

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And the property rights say, yeah, well, we,

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we have a good explanation of these limitations.

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Then there are other, characteristics of the right

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that shows that it's property.

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So it's a property, right? And they can't really,

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and they're kind of deadlock

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and they can't really resolve the problem.

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Um, so in our work, what Han

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and I show is that this stalemate,

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stalemate can be attributed

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to a misguided view about the nature

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of property rights in general,

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that actually both scholars from both camps share.

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And if we dispel this mistake about

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what property rights are, we can, break

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through this statement

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and show that, that actually the rights

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of the beneficiary are proprietary properly understood.

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So the, the, the view that we, reject,

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that they share and we reject, in favor

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of a liberal view of a property, right, in general

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and of the trust in particular is Blackstone's view

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as of proper proprietary rights as based on exclusion.

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So the personal right camp

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Build a theory around the beneficiary's inferior power,

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right, to enforce the rights on third parties in comparison

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with outright owners of fee simple in a piece of property.

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So the immunity of, fin purchasers,

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and the somewhat reduced ability of the beneficiary

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to sue in case of tort committed against the trust property.

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Or if, if a theft is committed, the beneficiary cannot,

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at least in principle, they cannot, the beneficiary cannot

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sue directly, the thief or the tort visa,

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and that they show, shows that the,

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beneficiaries rights cannot be considered as proprietary,

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in that they endorse sometimes really explicitly

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Blackstone's view according to which property, right,

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is defined by reference, basically by reference

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to the owner's, right, to exclude.

06:50.305 --> 06:55.175
So this obsolete really view of property,

06:55.245 --> 06:56.255
applies today,

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and even at the time of, Blackstone himself,

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to a really limited segment of what people wildly hold

07:04.275 --> 07:05.735
to be property, right?

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So it applies to somebody who sits in his castle,

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out there in the country

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or to a, maybe a pen that you are holding just for yourself,

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but it misses out on the structure of these rights,

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and no less importantly, it misses on the tight relationship

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of the requirement of relational justice.

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Um, as I will explain now, and,

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moreover as I will, we'll, we'll discuss later,

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it applies really to a very, very, not very, very,

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but a very small segment of, the, per

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of property rights as we see them today.

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Um, but before that, it is important to note that scholars

07:45.975 --> 07:47.975
that endorse the proprietary view

07:47.975 --> 07:49.535
of the beneficiary's, right?

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Uh, sorry, the contractual view of the beneficiary's, right?

07:53.565 --> 07:57.135
Also, Taly endorsed the same Estonian view

07:57.135 --> 07:59.335
of property in, in the following way.

07:59.475 --> 08:02.855
So you won't find in, in the contractual,

08:03.175 --> 08:04.975
reference you in the contractual view,

08:05.035 --> 08:07.775
you won't find a direct reference usually to Blackstone.

08:08.075 --> 08:11.015
But what we want to show is that they also share this view

08:11.165 --> 08:14.255
because they tackle the contractual school,

08:14.255 --> 08:16.695
tackle the exceptions to the beneficiary's power

08:16.715 --> 08:19.255
to enforce the right on third party, really

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as policy led external limitation on the property rights.

08:23.795 --> 08:27.615
And they say, we can explain these exceptions by reference

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to policy, and therefore the property right remains intact,

08:31.595 --> 08:33.495
and that, we will want to show,

08:33.635 --> 08:35.895
or we show in the paper is,

08:36.115 --> 08:38.495
is a missing out on the structure

08:38.555 --> 08:42.055
of property rights in which these limitations are internal

08:42.555 --> 08:43.735
to property rights

08:43.735 --> 08:46.655
and are part of parcel what it means to be owner.

08:46.915 --> 08:50.015
The point, of departure of liberal theory

08:50.075 --> 08:54.615
or property, right, is the property both empowers and

08:54.695 --> 08:55.695
Disables.

08:56.105 --> 08:58.845
And therefore, while property has a huge potential

08:58.845 --> 09:01.845
to contribute to people's autonomy, to owners' autonomy,

09:02.505 --> 09:06.325
it also faces at the same time the really onerous legitimacy

09:06.525 --> 09:09.925
challenges because the private control over resources

09:09.925 --> 09:13.165
that everybody could have used in principle must be

09:13.325 --> 09:14.605
justified by reference

09:14.605 --> 09:18.005
to the burden ownership places on non-owners.

09:18.585 --> 09:22.205
And so, in contrast with the blackton view of property,

09:22.845 --> 09:25.885
a genuine liberal view is focused both on

09:25.885 --> 09:28.405
what property right could do for owners that is mainly

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enhanced their autonomy and on the necessary limitation

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placed on private authority over resources if they are

09:37.565 --> 09:40.765
to comply with demands of relational justice.

09:41.585 --> 09:43.645
Um, and the limitation on power of owners

09:43.715 --> 09:45.365
that are required in order

09:45.425 --> 09:49.245
for the burden they place on non-owners to be justified, are

09:49.245 --> 09:51.725
therefore internal to the property rights.

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They don't come from policy from, public law,

09:56.685 --> 09:59.165
and they are the limitations are part

09:59.165 --> 10:01.565
and parcel of the property right itself.

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So in previous work, we offer,

10:05.125 --> 10:07.805
a justifying principle for the trust according

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to which a trust is a form of property ownership

10:11.395 --> 10:14.485
that is necessary if a legal property re,

10:14.505 --> 10:19.325
if a really truly liberal property regime, is to be

10:20.345 --> 10:23.285
is, is is what we, is what we want for, for the country.

10:23.905 --> 10:27.885
So the trust, we argue act as a balancing force

10:28.185 --> 10:31.365
to the very important numerous clauses requirements.

10:31.385 --> 10:34.165
So numerous clauses is, the closed list.

10:34.265 --> 10:37.245
And if you remember, if you want to create,

10:37.565 --> 10:39.605
property rights on your property, you have

10:39.605 --> 10:40.925
to abide by this list.

10:40.925 --> 10:43.165
You have to choose one of the rights

10:43.165 --> 10:48.045
that are allowed easement, fee simple, what

10:48.605 --> 10:50.565
whatever you have here, whatever you have on, on,

10:50.565 --> 10:51.925
on the list in, in your country,

10:52.345 --> 10:56.965
but it's always state, defined list that you

10:57.105 --> 10:59.085
as the owner must abide by.

10:59.755 --> 11:01.965
This closed list in numerous close is

11:01.965 --> 11:04.285
of course severely limits the owner's ability

11:05.065 --> 11:06.765
to tailor the property rights according

11:06.765 --> 11:10.165
to their own life plans and hopes for, for the property.

11:10.785 --> 11:11.925
And in that sense, the

11:11.945 --> 11:15.965
nor closeness curtails owner's right to autonomy and, and

11:15.965 --> 11:18.125
therefore seriously reduces the score

11:18.125 --> 11:21.205
that the system gains on the enhancing autonomy scale.

11:21.705 --> 11:23.925
But since promoting autonomy, as we said,

11:23.945 --> 11:26.325
is really a core justification of property, right?

11:26.395 --> 11:28.925
This is a real, structural problem

11:29.225 --> 11:31.285
for all liberal property regime.

11:31.825 --> 11:36.725
So one really good way of resolving distention between,

11:36.865 --> 11:38.045
the nor clauses and

11:38.155 --> 11:41.125
what we want from a liberal property regime that is,

11:41.125 --> 11:44.285
that you will enhance owner's autonomy is the trust.

11:44.865 --> 11:48.245
The trust alleviates this problem in a really dramatic way

11:48.425 --> 11:52.765
by allowing owners to property right behind the of the

11:52.765 --> 11:56.765
Trust in almost whatever way they see fit, almost.

11:57.265 --> 11:59.765
Um, now, the ingenuity of equity is

11:59.765 --> 12:01.485
that it allows this flexibility

12:02.075 --> 12:06.245
without compromising on the values that are encompassed

12:06.345 --> 12:08.045
by the numerous cases, namely,

12:08.515 --> 12:11.685
that third parties will not incur information

12:12.025 --> 12:13.445
and other costs in order

12:13.465 --> 12:17.085
to accommodate any plan the owner may have for the property

12:17.675 --> 12:21.325
that is a core relational justice requirement.

12:21.745 --> 12:25.845
So the Bonita purchaser rules focusing now back on,

12:25.845 --> 12:29.805
on trust law ensures that only third parties

12:30.425 --> 12:33.085
who knew or should have known about the trust

12:33.295 --> 12:34.405
would be bound by it.

12:35.145 --> 12:37.365
And so the burden that is associated

12:37.365 --> 12:39.805
with the private property, right, that they created

12:40.425 --> 12:43.205
or enjoy falls on the settler

12:43.205 --> 12:45.845
and the beneficiary as they may lose the property.

12:46.225 --> 12:49.565
And, and the plans for the property may be,

12:49.735 --> 12:54.445
undermined if a third party who is a bonafide purchaser,

12:54.715 --> 12:57.365
that is, that they should not have incurred the expense

12:57.365 --> 12:58.565
of finding out about it.

12:59.025 --> 13:03.925
Um, take the, property free of the beneficiaries claim,

13:04.705 --> 13:06.165
and here is the crux of the matter,

13:06.425 --> 13:08.925
the limitation on the beneficiary's right

13:08.925 --> 13:12.925
to enforce the right on innocent third parties who paid

13:12.985 --> 13:17.005
for the trust property is internal to the property, right?

13:17.235 --> 13:19.125
That the beneficiaries have.

13:19.395 --> 13:21.965
This is where the contractual, this is

13:21.965 --> 13:25.245
where the property school mis understanding

13:25.925 --> 13:29.845
the property, right, that they attribute to the beneficiary.

13:29.955 --> 13:34.125
Because rather than seeing the, the bon purchaser rule

13:34.705 --> 13:36.725
as, as both, as I said, the contractor

13:36.785 --> 13:39.845
and property school do as an external constraint kind

13:39.845 --> 13:41.205
of policy led constraint,

13:41.315 --> 13:43.605
that can potentially undermine the status

13:43.665 --> 13:46.845
of the beneficiary's rights as, as, as owner,

13:47.825 --> 13:51.165
the beda purchaser rule ought to be conceptual as a part

13:51.185 --> 13:54.005
and parcel of the beneficiary's property, right?

13:54.335 --> 13:57.405
Which responds to the relational justice requirements

13:57.555 --> 14:01.285
that are integral to the rights viewed in that way.

14:01.905 --> 14:05.085
The beda purchaser is just one structural feature

14:05.545 --> 14:08.325
of the beneficiaries shared property, right

14:08.345 --> 14:09.405
to the trust property,

14:09.515 --> 14:11.045
because liberal theory

14:11.065 --> 14:14.885
of property moved away from the obsolete focus on the right

14:14.885 --> 14:18.285
to exclude, and it looks instead at this wide plethora

14:18.285 --> 14:21.725
of powers that are associated with ownership.

14:22.265 --> 14:24.045
So one type of ownership that

14:24.105 --> 14:26.645
as we know is becoming increasingly more important

14:26.645 --> 14:28.445
to modern economy is the shared

14:28.505 --> 14:31.445
or divided ownership where this idea of right

14:31.445 --> 14:34.485
to exclude it may exist, you may apply it to somewhere,

14:34.485 --> 14:37.885
but it's really, really not the focus of what

14:38.445 --> 14:41.165
property law is doing when it creates these types

14:41.185 --> 14:42.685
of shared or divided ownership.

14:42.715 --> 14:45.605
What is important there is the kind of governance

14:46.145 --> 14:50.805
and structure that property law is creating for,

14:51.105 --> 14:54.325
Uh, in order to create this kind of, platform

14:54.865 --> 14:56.485
for divided or shared ownerships.

14:56.585 --> 14:57.845
And, and examples are of course,

14:57.845 --> 15:01.165
abundant from traditional leaseholds, joint tenancies

15:01.165 --> 15:03.125
and more modern condos and co-ops.

15:03.125 --> 15:06.325
And, and, and more and more in all these forms of divided

15:06.425 --> 15:08.805
or shared ownership, the shape of the trust,

15:09.235 --> 15:12.285
like in all these, forms, the shape

15:12.285 --> 15:15.005
of the trustee's ownership is functional

15:15.065 --> 15:17.925
to the trust's normative telos, namely the promotion

15:17.925 --> 15:18.925
of the beneficiary.

15:19.345 --> 15:21.445
And in the derivative way, the settler's autonomy,

15:21.945 --> 15:23.045
the beneficiary's right,

15:23.225 --> 15:25.285
is also tailored to achieve this goal.

15:25.545 --> 15:27.885
And at the same times, it is subject

15:28.185 --> 15:31.005
to its own internal limitation that is set

15:31.065 --> 15:33.925
by relation adjusters requirement, as I explained before.

15:34.625 --> 15:38.245
So this is how the limitation on the respective ownership

15:38.245 --> 15:39.245
power should be viewed.

15:39.785 --> 15:43.245
And as such, they enhance the, like the benefiter purchaser

15:43.245 --> 15:45.885
and other, limitations on the right of standing

15:45.905 --> 15:46.925
of the beneficiary.

15:46.945 --> 15:49.525
And that limitations, that undermine the status

15:49.665 --> 15:51.565
of the property, of the property, right,

15:51.565 --> 15:53.565
of the beneficiary, it's the other way around.

15:53.635 --> 15:58.565
They enhance it as a form of divided and shared ownership

15:58.565 --> 16:01.085
because they, they are, they explain

16:01.145 --> 16:05.445
and justify the governance structure of the property, right,

16:05.945 --> 16:07.885
as a shared or divided, right?

16:07.915 --> 16:10.645
That is, geared towards, on the one hand,

16:11.035 --> 16:13.085
like all liberal property rights on the one hand,

16:13.085 --> 16:16.405
promoting autonomy on the other hand, complying with,

16:16.625 --> 16:18.805
requirements of, relational justice.

16:19.585 --> 16:22.165
So the contractual theory view

16:22.435 --> 16:24.645
therefore departs from the orthodoxy on

16:24.645 --> 16:26.005
insufficient grounds, right?

16:26.005 --> 16:28.045
Because if this is the main orthodoxy

16:28.045 --> 16:30.085
and they say you have a problem with the author,

16:30.185 --> 16:31.685
the problem is actually not there.

16:32.305 --> 16:34.485
Um, and it misinterpret really the legal

16:34.575 --> 16:36.165
pheno phenomena, it examines.

16:36.465 --> 16:38.765
But I want to note importantly that they do

16:38.835 --> 16:42.885
that there is one extra really unappealing aspect

16:43.065 --> 16:44.405
to the contractual review.

16:44.945 --> 16:48.245
Um, and this is where they are unable

16:48.305 --> 16:50.485
to really explain the shielding rule.

16:50.825 --> 16:53.685
Um, this is the, the shielding rule,

16:53.875 --> 16:55.485
that allows the beneficiary

16:55.485 --> 16:58.485
to claim the trust property in its entirety.

16:59.105 --> 17:00.525
If the trustee goes bankrupt

17:00.705 --> 17:03.725
and the legal title to the trust passes onto a trustee in

17:03.725 --> 17:08.045
bankruptcy can only really be justified if the beneficiary

17:08.045 --> 17:10.405
can say, this is mine, right?

17:10.825 --> 17:12.965
Um, if all of the beneficiary has

17:13.965 --> 17:16.765
vis-a-vis other creditor is a personal right,

17:17.145 --> 17:19.445
it is really impossible to explain

17:20.065 --> 17:24.125
why she doesn't stand in line with all other, people

17:24.125 --> 17:26.685
who have contractual rights against the trustee property

17:27.345 --> 17:29.845
and, and share with them, right?

17:30.015 --> 17:33.405
Think about, taught victims and, and, and, and all sorts

17:33.405 --> 17:34.605
and, and workers and all sorts.

17:34.605 --> 17:36.445
Why should the beneficiary be able, they,

17:36.465 --> 17:38.085
all they have is the personal right?

17:38.305 --> 17:40.445
Why should they be able to stand at the front

17:40.585 --> 17:41.805
and claim everything?

17:42.305 --> 17:45.045
Um, this is not really a matter of priority here.

17:45.345 --> 17:48.685
So the, it, it's not so that the contractual,

17:48.835 --> 17:50.805
View can say, well, you know,

17:50.805 --> 17:52.005
there are all sorts of priority.

17:52.005 --> 17:53.845
What priority is given to the beneficiary.

17:53.845 --> 17:55.045
First of all, it is impossible

17:55.065 --> 17:57.725
to explain why the beneficiary is given this kind

17:57.725 --> 17:59.885
of priority, but there's something deeper there

17:59.915 --> 18:01.405
because what they miss is

18:01.405 --> 18:05.365
that the beneficiary takes the property clean off the,

18:05.365 --> 18:06.485
creditor's requirements

18:06.485 --> 18:09.845
because she's the residual owner of the property.

18:10.185 --> 18:13.325
It is not a priority rule. It is her property.

18:13.705 --> 18:15.405
And every other explanation in terms

18:15.405 --> 18:16.765
of policy driven priority

18:16.765 --> 18:20.885
or so on doesn't explain the, from a normative point

18:20.885 --> 18:22.805
of view, what is going on.

18:23.065 --> 18:26.925
And it is missing completely on the nature of the claim here

18:26.995 --> 18:31.125
because she claims as a matter of ownership rights.

18:31.495 --> 18:33.725
There are, a few implications.

18:33.725 --> 18:37.405
So one implication, like a, a group of implications,

18:37.835 --> 18:42.325
that, applies really to all the, theories that claim

18:42.355 --> 18:44.925
that, the right is proprietary, is

18:45.125 --> 18:47.925
that there are various, statutes,

18:48.025 --> 18:51.765
and rules that apply only to, property.

18:52.025 --> 18:53.205
And if they, and, and,

18:53.205 --> 18:56.325
and if the, the beneficiary is an owner, then these,

18:56.495 --> 18:58.125
apply these statutes and, and,

18:58.125 --> 19:00.085
and rules apply to the beneficiary.

19:00.385 --> 19:01.565
Um, some cases

19:01.705 --> 19:04.365
and Supreme Court recent cases in Supreme Court,

19:04.365 --> 19:07.565
in the English Supreme Court, have applied,

19:07.655 --> 19:08.925
these, these rules.

19:08.985 --> 19:11.565
So they are not an outlay, they're really, central

19:11.585 --> 19:14.765
and it's really important for us to settle the question once

19:14.765 --> 19:17.965
and for all, whether the beneficiary has property rights in

19:18.065 --> 19:22.165
the trust property, more specific to our theory.

19:22.625 --> 19:26.005
Um, so as I said, we have a corpus of work that,

19:26.365 --> 19:29.725
ties up the, trust to the idea

19:29.785 --> 19:31.805
of a liberal property regime.

19:32.065 --> 19:35.165
And we believe that the fact that the, idea

19:35.165 --> 19:39.605
of liberal property regime can explain so nicely,

19:39.955 --> 19:42.405
what is going on there in the relationship

19:42.405 --> 19:43.925
between the beneficiary and the,

19:43.985 --> 19:46.605
and the, trust property shows,

19:46.755 --> 19:49.085
that it is really a strong explanation

19:49.085 --> 19:50.165
of the trust in general

19:50.745 --> 19:53.565
and, of property rights even more in general.

19:54.305 --> 19:54.525
So.

00:00 - So I just want to clarify that this is a paper I wrote with Professor GaN from Berkeley. so it's a, it's a shared work. so the trust is one of the oldest and most federated legal institution in English law. it is an essential

00:13 - and really highly popular form of property holding that is being used in response to a wide spectrum of human needs and aspirations. and nevertheless, one of the most fundamental aspects of the trust remains under determined and until recently, really under discussed. and this is the nature of the beneficiary's right to the trust property. So while it's clear that the trustee has, a proprietary interest in the trust property because he

00:40 - or she's the legal owner, the right which the equity confers in the property to the beneficiary has changed in times quite dramatically over this really long development of, of the trust. And it is still as it is now, it is still far enough from the conventional property interests that we know, in a way that gives rise to a deep controversy about its nature. So on the one hand, we have the Orthodox view that is being repeated in case law

01:08 - and endorsed really by many older, as well as more recent scholarship that the beneficiary has a proprietary interest in the trust property. but others, inspired mainly by Frederick Maitland from the 19th century may maintained that the beneficiary's right, just as it was at its inception in medieval times, is actually a personal right rather than proprietary. So of course, the distinction between proprietary

01:34 - and personal right, is not, really an all or nothing. One rather rights with regards to legal things lying across a spectrum that runs from a very strong property, right on the one hand, and the pure per purely personal ones on the other hand. Now, both camps, that is those who believe that the, beneficiary's right, is proprietary, and those who believe that the beneficiary's right is personal.

01:58 - They agree that the beneficiary's right along this spectrum of, property and personal right, it lies close to the middle, yeah, to the border between personal property rights. But according to the Orthodox view, the beneficiary increasingly widening power to enforce her right on third parties, as well as some other features like the power to assign the right or the sonder vote rights in English law, that allows the beneficiary to collapse the trust

02:28 - and claim property under certain conditions. And some other features of this, right? That mean that the right of the beneficiary has acquired proprietary status, albeit a weak one. So for them, it is a property, right? A weak property, right? The, other count that is those that believe that the right is personal, believe that the serious limitations on the beneficiary's power

02:53 - to enforce the right on third party, mainly the limitation, with regard to the Baf fade purchaser for value, that is bon fade purchaser from the trust of the legal title, from the trustee gets good title in, which is very different from how, ordinary, ownership in common law works. That means that the beneficiaries, right, remains a personal right, although it is very strong personal, right?

03:20 - Because it can be enforced against third parties in a way, most personal rights cannot be. So, a new version of the personal right view, the, McFarland and Stevens rights against Right Theory, explains the strength of this personal right. In terms of persistence, they say that the beneficiary's, right, although it is personal, right, it is a very special personal, right, in the sense that it attaches itself to the trustee's proprietary right in the property, in the trust property.

03:50 - And this very unique form structure they say is the hallmark of the trust as the legal institution. and this is the really the ingenuity of equity in creating, the trust, but their right, their, their view is still, part of the contractual view. So that would give you the, the the kind of, background, the scholarly background that you need to understand, the arguments that we make in the paper. But the argument between these two camps, the proprietary

04:18 - and the personal reached a kind of impasse because both parties cite the differences between the core personal or proprietary, right? As a proof that the beneficiary's right, belong in the other category. So the personal, right, those who believe that it's a personal right, say, look, it is much more, it, it, it is stronger than personal than other, personal rights, but it is very limited in the way it can be enforced on third parties.

04:45 - So that means that it's a personal, right? And the property rights say, yeah, well, we, we have a good explanation of these limitations. Then there are other, characteristics of the right that shows that it's property. So it's a property, right? And they can't really, and they're kind of deadlock and they can't really resolve the problem. so in our work, what Han and I show is that this stalemate,

05:06 - stalemate can be attributed to a misguided view about the nature of property rights in general, that actually both scholars from both camps share. And if we dispel this mistake about what property rights are, we can, break through this statement and show that, that actually the rights of the beneficiary are proprietary properly understood. So the, the, the view that we, reject,

05:38 - that they share and we reject, in favor of a liberal view of a property, right, in general and of the trust in particular is Blackstone's view as of proper proprietary rights as based on exclusion. So the personal right camp Build a theory around the beneficiary's inferior power, right, to enforce the rights on third parties in comparison with outright owners of fee simple in a piece of property. So the immunity of, fin purchasers, and the somewhat reduced ability of the beneficiary

06:15 - to sue in case of tort committed against the trust property. Or if, if a theft is committed, the beneficiary cannot, at least in principle, they cannot, the beneficiary cannot sue directly, the thief or the tort visa, and that they show, shows that the, beneficiaries rights cannot be considered as proprietary, in that they endorse sometimes really explicitly Blackstone's view according to which property, right, is defined by reference, basically by reference to the owner's, right, to exclude.

06:50 - So this obsolete really view of property, applies today, and even at the time of, Blackstone himself, to a really limited segment of what people wildly hold to be property, right? So it applies to somebody who sits in his castle, out there in the country or to a, maybe a pen that you are holding just for yourself, but it misses out on the structure of these rights, and no less importantly, it misses on the tight relationship

07:23 - of the requirement of relational justice. as I will explain now, and, moreover as I will, we'll, we'll discuss later, it applies really to a very, very, not very, very, but a very small segment of, the, per of property rights as we see them today. but before that, it is important to note that scholars that endorse the proprietary view of the beneficiary's, right? sorry, the contractual view of the beneficiary's, right?

07:53 - Also, Taly endorsed the same Estonian view of property in, in the following way. So you won't find in, in the contractual, reference you in the contractual view, you won't find a direct reference usually to Blackstone. But what we want to show is that they also share this view because they tackle the contractual school, tackle the exceptions to the beneficiary's power to enforce the right on third party, really as policy led external limitation on the property rights.

08:23 - And they say, we can explain these exceptions by reference to policy, and therefore the property right remains intact, and that, we will want to show, or we show in the paper is, is a missing out on the structure of property rights in which these limitations are internal to property rights and are part of parcel what it means to be owner. The point, of departure of liberal theory or property, right, is the property both empowers and

08:54 - Disables. And therefore, while property has a huge potential to contribute to people's autonomy, to owners' autonomy, it also faces at the same time the really onerous legitimacy challenges because the private control over resources that everybody could have used in principle must be justified by reference to the burden ownership places on non-owners. And so, in contrast with the blackton view of property, a genuine liberal view is focused both on

09:25 - what property right could do for owners that is mainly enhanced their autonomy and on the necessary limitation placed on private authority over resources if they are to comply with demands of relational justice. and the limitation on power of owners that are required in order for the burden they place on non-owners to be justified, are therefore internal to the property rights. They don't come from policy from, public law, and they are the limitations are part

09:59 - and parcel of the property right itself. So in previous work, we offer, a justifying principle for the trust according to which a trust is a form of property ownership that is necessary if a legal property re, if a really truly liberal property regime, is to be is, is is what we, is what we want for, for the country. So the trust, we argue act as a balancing force to the very important numerous clauses requirements. So numerous clauses is, the closed list.

10:34 - And if you remember, if you want to create, property rights on your property, you have to abide by this list. You have to choose one of the rights that are allowed easement, fee simple, what whatever you have here, whatever you have on, on, on the list in, in your country, but it's always state, defined list that you as the owner must abide by. This closed list in numerous close is

11:01 - of course severely limits the owner's ability to tailor the property rights according to their own life plans and hopes for, for the property. And in that sense, the nor closeness curtails owner's right to autonomy and, and therefore seriously reduces the score that the system gains on the enhancing autonomy scale. But since promoting autonomy, as we said, is really a core justification of property, right? This is a real, structural problem

11:29 - for all liberal property regime. So one really good way of resolving distention between, the nor clauses and what we want from a liberal property regime that is, that you will enhance owner's autonomy is the trust. The trust alleviates this problem in a really dramatic way by allowing owners to property right behind the of the Trust in almost whatever way they see fit, almost. now, the ingenuity of equity is that it allows this flexibility

12:02 - without compromising on the values that are encompassed by the numerous cases, namely, that third parties will not incur information and other costs in order to accommodate any plan the owner may have for the property that is a core relational justice requirement. So the Bonita purchaser rules focusing now back on, on trust law ensures that only third parties who knew or should have known about the trust would be bound by it.

12:35 - And so the burden that is associated with the private property, right, that they created or enjoy falls on the settler and the beneficiary as they may lose the property. And, and the plans for the property may be, undermined if a third party who is a bonafide purchaser, that is, that they should not have incurred the expense of finding out about it. take the, property free of the beneficiaries claim, and here is the crux of the matter,

13:06 - the limitation on the beneficiary's right to enforce the right on innocent third parties who paid for the trust property is internal to the property, right? That the beneficiaries have. This is where the contractual, this is where the property school mis understanding the property, right, that they attribute to the beneficiary. Because rather than seeing the, the bon purchaser rule as, as both, as I said, the contractor and property school do as an external constraint kind

13:39 - of policy led constraint, that can potentially undermine the status of the beneficiary's rights as, as, as owner, the beda purchaser rule ought to be conceptual as a part and parcel of the beneficiary's property, right? Which responds to the relational justice requirements that are integral to the rights viewed in that way. The beda purchaser is just one structural feature of the beneficiaries shared property, right to the trust property,

14:09 - because liberal theory of property moved away from the obsolete focus on the right to exclude, and it looks instead at this wide plethora of powers that are associated with ownership. So one type of ownership that as we know is becoming increasingly more important to modern economy is the shared or divided ownership where this idea of right to exclude it may exist, you may apply it to somewhere, but it's really, really not the focus of what

14:38 - property law is doing when it creates these types of shared or divided ownership. What is important there is the kind of governance and structure that property law is creating for, in order to create this kind of, platform for divided or shared ownerships. And, and examples are of course, abundant from traditional leaseholds, joint tenancies and more modern condos and co-ops. And, and, and more and more in all these forms of divided

15:06 - or shared ownership, the shape of the trust, like in all these, forms, the shape of the trustee's ownership is functional to the trust's normative telos, namely the promotion of the beneficiary. And in the derivative way, the settler's autonomy, the beneficiary's right, is also tailored to achieve this goal. And at the same times, it is subject to its own internal limitation that is set

15:31 - by relation adjusters requirement, as I explained before. So this is how the limitation on the respective ownership power should be viewed. And as such, they enhance the, like the benefiter purchaser and other, limitations on the right of standing of the beneficiary. And that limitations, that undermine the status of the property, of the property, right, of the beneficiary, it's the other way around. They enhance it as a form of divided and shared ownership

15:58 - because they, they are, they explain and justify the governance structure of the property, right, as a shared or divided, right? That is, geared towards, on the one hand, like all liberal property rights on the one hand, promoting autonomy on the other hand, complying with, requirements of, relational justice. So the contractual theory view therefore departs from the orthodoxy on insufficient grounds, right?

16:26 - Because if this is the main orthodoxy and they say you have a problem with the author, the problem is actually not there. and it misinterpret really the legal pheno phenomena, it examines. But I want to note importantly that they do that there is one extra really unappealing aspect to the contractual review. and this is where they are unable to really explain the shielding rule.

16:50 - this is the, the shielding rule, that allows the beneficiary to claim the trust property in its entirety. If the trustee goes bankrupt and the legal title to the trust passes onto a trustee in bankruptcy can only really be justified if the beneficiary can say, this is mine, right? if all of the beneficiary has vis-a-vis other creditor is a personal right, it is really impossible to explain

17:20 - why she doesn't stand in line with all other, people who have contractual rights against the trustee property and, and share with them, right? Think about, taught victims and, and, and, and all sorts and, and workers and all sorts. Why should the beneficiary be able, they, all they have is the personal right? Why should they be able to stand at the front and claim everything? this is not really a matter of priority here.

17:45 - So the, it, it's not so that the contractual, View can say, well, you know, there are all sorts of priority. What priority is given to the beneficiary. First of all, it is impossible to explain why the beneficiary is given this kind of priority, but there's something deeper there because what they miss is that the beneficiary takes the property clean off the, creditor's requirements

18:06 - because she's the residual owner of the property. It is not a priority rule. It is her property. And every other explanation in terms of policy driven priority or so on doesn't explain the, from a normative point of view, what is going on. And it is missing completely on the nature of the claim here because she claims as a matter of ownership rights. There are, a few implications. So one implication, like a, a group of implications,

18:37 - that, applies really to all the, theories that claim that, the right is proprietary, is that there are various, statutes, and rules that apply only to, property. And if they, and, and, and if the, the beneficiary is an owner, then these, apply these statutes and, and, and rules apply to the beneficiary. some cases and Supreme Court recent cases in Supreme Court,

19:04 - in the English Supreme Court, have applied, these, these rules. So they are not an outlay, they're really, central and it's really important for us to settle the question once and for all, whether the beneficiary has property rights in the trust property, more specific to our theory. so as I said, we have a corpus of work that, ties up the, trust to the idea of a liberal property regime. And we believe that the fact that the, idea

19:35 - of liberal property regime can explain so nicely, what is going on there in the relationship between the beneficiary and the, and the, trust property shows, that it is really a strong explanation of the trust in general and, of property rights even more in general. So.

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