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An essay on uses.

About: The article was published on 2010-02-23 and is currently open access. It has received 4 citations till now.
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TL;DR: In this article, the role played by the concepts of use and trust in assume-it theory is discussed, with the focus on the first three theories: the interest theory, the benefit theory, and the consideration theory.
Abstract: beneficiary":2 the interest theory, the benefit theory, the agency cases, and the consideration theory. This article is concerned with the first of these theories, and in particular with the role played within that theory by the concepts of use and trust. The interest theory, as Palmer puts it, "was typically expressed in the statement, 'He that hath interest in the promise shall have the action"'.3 "Under this theory assumpsit functioned somewhat as a tort remedy for the beneficiary's damages": an action for the beneficiary was justified upon the basis that "non-performance of the promise caused an injury to his interest, and he should receive compensation".4 And in addition, the beneficiary's interest in the performance of the promise might be conceptualized as the enforcement of a "use" created by the promise. Although these were ordinary promises that contained no express use, this implied use in favor of the beneficiary apparently placed a property foundation under the claim in assumpsit. The beneficiary's interest in the promise was thus conceived as his property.

6 citations

Book Chapter
30 May 2019
TL;DR: In this article, it is argued that the ability to affect C is what justifies regarding a beneficial interest under a trust as more than a mere personal right, and the resolution of the paradox depends on accepting that, when B's beneficial interest is described as proprietary, "proprietary" must be understood in a limited sense.
Abstract: Equitable property rights can be seen as paradoxical: how can a system based on conscience have developed rights that operate in rem? In Akers v Samba Financial Group, for example, Lord Sumption states that that ‘an equitable interest possesses the essential hallmark of any right in rem’, yet goes on to say that when an asset subject to an equitable interest is transferred to a third party, ‘the question becomes whether the conscience of the transferee is affected’. Our aim here is to resolve this paradox, at least in relation to rights under a trust. Where T holds on trust for B, we argue that conscience is crucial when considering how and when B may make an equitable proprietary claim against C, a successor in title to the original trustee. Such a claim can only be made in relation to property which is held by C at a point in time when C’s conscience is affected by knowledge of the initial trust relationship between T and B, in such a way as to subject C to a duty to B. In other words, the proprietary effect of the trust is based squarely on an initial relationship between B and T, and a later, similar relationship between B and C, rather than any abstract, depersonalised interest of B. The resolution of the paradox depends on accepting that, when B’s beneficial interest is described as proprietary, ‘proprietary’ must be understood in a special, limited sense. The key to Lord Sumption’s observation in Akers is the particular, and idiosyncratic, sense in which his Lordship used the term ‘in rem’, defining the essential hallmark of such a right as being that it is ‘good against third parties into whose hands the property or its traceable proceeds may have come, subject to the rules of equity for the protection of bona fide purchasers for value without notice’. We agree that the ability to affect C is what justifies regarding a beneficial interest under a trust as more than a mere personal right. It is possible to recognise that a beneficial interest has such an effect whilst also distinguishing it from rights, such as a legal

2 citations

11 May 2015
TL;DR: In this paper, the interpretation of the origin of "trust" on the basis of the in-depth terminological analysis of the earliest "trust-like devices" is discussed.
Abstract: “Trust is an element that has been approached in the last decades by many disciplines and through many and varied means”. It is usually defined as a legal agreement under which a “settler” transfers property to a “trustee”, who has to exercise and manage it for the benefit of a “beneficiary” – an equitable and a beneficial owner of the property. Trust relationships become more and more popular in legal, commercial and non-commercial spheres of today’s life. Some researchers believe, that this legal institution originated in England at the end of the Middle Ages. However, certain studies indicate, that the initial “trust-like devices” existed even in the earlier times. Their existence stipulated the origination of the unique common law “trust” institution. The given paper is dedicated to the interpretation of the origin of “trust” on the basis of the in-depth terminological analysis of the earliest “trust-like devices”. It makes an attempt to answer the question of its purely Roman roots. The parallel is drawn between the ancient and medieval institutions.