Description

In the last several years a certain rapprochement has occurred amongst those dealing with the topic of ‘equitable property’, in the sense that the questions concerning what might make some right ‘equitable property’ have been illuminatingly focused following important foundational work by Robert Chambers, Lionel Smith, Ben McFarlane and Robert Stevens, and the speaker. Together they have suggested that equitable property rights have a certain form: that of rights relating to other rights. None of the commentators agree on a common precise vocabulary, and part of the point of this paper is to make some suggestions in that regard. But this will be in service of a further objective: to determine whether the power to create a trust falls within the common law world’s judge-made law’s numerus clausus, in so far as the common law does embrace a numerus clausas principle. This is something that has been denied, most particularly by Ben McFarlane. By contrast, I shall argue that the case of the express trust shows that there is indeed a genuinely distinct power to create a kind of property interest which falls within the common law’s version of the numerus clausas principle.