Article: The Beneficiary’s Ownership Rights in The Trust Res in A Liberal Property Regime

Hanoch Dagan and Irit Samet recently published an article entitled, The Beneficiary’s Ownership Rights in The Trust Res in A Liberal Property Regime, Wills, Trusts, & Estates Law journal (2022).

Provided below is the abstract to the Article: 

This article argues that a liberal theory of property rights can help us resolve a century old debate about a foundational aspect of the trust, namely, the nature of the beneficiary’s interest. According to orthodoxy, the beneficiary has a (weak form) of proprietary right to the trust res. But proponents of this view found it hard to defend it from attacks by Maitland and his successors who argue that central aspects of the beneficiary’s right, like deferral to bona fides purchaser for value, or the lack of right of standing to sue tortfeasors, imply that the beneficiary’s rights should be classified as a personal right against the trustee. The reason for their failure, we argue, is the misguided picture of property rights, as essentially the right to exclude, which they share with proponents of the obligation theory. For liberal property theory, by contrast, divided ownership, of the kind exemplified by the trust, takes pride of place. Thus, when read through the right lens, orthodoxy is best placed to account for all aspects of the beneficiary’s right, including the shielding rule, which the obligation theory finds impossible to explain on a conceptual or normative levels.