In this paper, I suggest that taking seriously the way in which the trust is founded on a duty of conscience has far-reaching ramifications for the appropriate attitude towards new forms of trusts that are designed to allow people to enjoy the benefits of ownership without incurring the duties that come with it. The morally freighted concept of conscience that lies at the heart of trust law means that every claim against trustees invokes a demand that the trustee abide by the requirements of their conscience. The conditions on the right to blame others for a moral wrongdoing, and the relationship between blaming and suing in the context of trust law, lead to the conclusion that, in novel forms of trust that are geared towards the creation of a morally bankrupt “orphan property”, beneficiaries do not have moral standing to sue the trustee for a breach of trust.

Abstract This chapter attempts to dig a little deeper into the relationship between the general theory advanced by Gardner and Big E Equity, namely, the body of law developed by the courts of Chancery in England. The chapter asks whether the central ideas Gardner explored in ‘From Personal Life to Private Law’ apply to the law of Equity. The question is interesting for scholars and students of Equity, even if Gardner himself never got around to discuss it in depth. The chapter suggests that the answer to this question is ‘yes, albeit in a unique way that reflects the unusual nature of this area of law’. It starts by looking briefly at Gardner’s explanation of why the law of obligations operates in the way that it does (mainly in Gardner’s chapter 5), and then explain why, at first glance, it does not seem to account for Equity. However, as the chapter argues next, correctly identifying if the unique role of Equity within the legal system can help reveal the way in which the themes Gardner suggests reverberate under its surface.

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 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. Liberal property theory, by contrast, gives pride of place to divided ownership, of the kind exemplified by the trust, and accounts for all aspects of the beneficiary's right.

Abstract Scholarly inquiry into the doctrinal aspects of trust law is prolific. However, investigation of the foundational questions to which trust law gives rise is largely missing. The trust presents the jurist with numerous conceptual, doctrinal, and ethical challenges. For example, trusts have been deployed towards a variety of personal and commercial pursuits and government purposes. In addition to being used towards the pursuit of good, trusts have also been used for ill. The interaction of trust law with other laws agitates numerous conceptual and moral quandaries about its essence, the nature of the relationships it creates, and its value to society. The chapters in this book explore some of these quandaries. They identify different challenges and adopt a variety of methodological approaches and perspectives towards their resolution, ranging from conceptual questions about what is ‘the trust’ and ‘trusts law’, analysing the legal and/or moral statuses of each of the settlor, trustee, and beneficiary, to questioning the moral foundations of different trusts and range of pursuits towards which parties have deployed them. Three broad themes emerge. The first theme is a consideration of the ways in which conceptual, historical, and doctrinal analyses impact how we understand and justify the law of express trusts. The second theme is about justifications. It asks about the ends achieved by trusts, despite the risk that the trust form may be abused for illegal or illegitimate ends. The third theme returns to this risk of abuse, considering some of the justificatory challenges presented for trusts.

Abstract The trust is standing at a crossroad. From a complex form of ownership that was little noticed by the general public, it has become (in)famous as one of the favourite tools used by wealthy people in order to escape their duties to society and individuals. Trust sceptics are correct to revolt against the increasing abuses of the trust. But they are wrong to deem the express trust beyond redemption. This chapter offers an explanation of one normative basis of express trusts: the state is justified in enforcing trusts as a fulfilment of its obligation to promote the autonomy of citizens. The trust fulfils a crucial role in the fabric of the ideal property system, and as such it should be nurtured, but also, trimmed where it grew beyond its proper normative borders. If property law is to fulfil its potential to be a truly liberal regime that acts to enhance people’s autonomy, it must feature trusts or other legal devices that allow owners to tailor property rights that serve their individual plans, as long as they do not externalise the costs to third parties. The promotion of the autonomy ideal—understood much more robustly than only an increased number of options—sets limits on the contours the trust, and thereby serves as a tool for assessing the different facets of modern trust law. The chapter therefore concludes that taking autonomy as the justifying principle of the trust can (re)establish it as an honourable member of a modern legal system.

The theoretical engagement with the law of Equity has never been so popular as nowadays. This immensely important body of law is now attracting the attention of private law theoreticians as questions that were first raised by Aristotle take a modern twist, and entrenched traditions are being questioned. The chapter explores the main strands of this renewed philosophical interest in Equity through the lens of the fusion debate, i.e. the question whether and to what extent Equity should retain its independence from the common law. Fusion is an apt gateway to the theoretical study of Equity as it engages two fundamental questions: 1) what is the price for preserving the current dualist system of Equity/Common Law (doctrinally if not institutionally); and 2) whether Equity’s unique mode of adjudication and/or the structure of its norms enable it to play a role whose benefits outweigh the price of this dualism. The flexible, retroactive and particularistic manner of deciding cases which they employed, and the open-ended morally freighted norms which they developed placed the courts of Equity in the line of fire from the very start. The chapter assesses, and rejects, the modern version of this ‘Equity scepticism’ as largely exaggerated and as based on misconceptions about the concept of conscience in Equity, and the relationship between legal rules and the Rule of Law. In sharp contrast with the previously-dominant nominalist perception of Equity as a collection of doctrines that historically happened to originate in the Court of Chancery, the chapter supports a positive answer to the second question. It looks favorably at three attempts to identify a theme that runs through (at least) the core doctrines of Equity, and amounts to a vocation that can salvage this body of law from the accusation that it erodes the Rule of Law: combating opportunism, aligning private law with deeply-held moral convictions and introducing a new form of rights against other rights.

This paper explores the question whether the normativity of tradition gives us reasons to preserve the norms of equity (more or less) in their historical form, i.e., as separate from neighboring common law doctrines. The main target of the paper are arguments that call for the replacement of equity with other, arguably more successful, means for attaining the goals equity sets to achieve. It begins by showing that even liberal, progressive and rationalist people should see traditions as making a normative claim on us, as they can potentially possess both instrumental and non-instrumental value that goes over and above the content of the beliefs, rituals or forms of action which they uphold. The second part asks whether equity qua legal tradition exemplifies such value. I find that the unique combination of legal and moral tradition that we find in equity endows it with a great value as an agent for social cohesion, an instrument of coordination and a source of invaluable know-how knowledge. With reference to two concrete examples of alternatives to equity—the continental doctrine of abuse of rights and a good faith principle—I argue that the fact that equity has been the way we do things around here for so long makes it a better platform for reform than an implant from foreign system or a newly devised set of norms. If reform is needed, we should take equity as its starting point rather than wiping the slate clean and starting from scratch.

Trust sceptics are correct to revolt against the increasing abuses of the trust. But they are wrong to deem it beyond redemption. In this chapter, written for the “Philosophical Foundations of the Law of Trusts”, we develop a charitable interpretation of trust doctrine and of the legacy of the trust that offers a happy raison d’etre around which it can, and should, be reconstructed. The trust, we argue, plays an indispensable role in a system of liberal (that is: autonomy-enhancing) property law. Pushing it to live up to this (implicit) promise offers an exciting reformist agenda in which many of its weeds are properly cleared.

I am deeply grateful to the four commentators for engaging with my work in a deep and creative manner; tempting such outstanding scholars setting their inquisitive minds unto my work x is the best I could possibly ask for. Their thoughts set me unto new paths that correspond with the present book but move beyond it. There is no way I can do justice in this short piece to all the excellent points they raise in their critique. I therefore chose to write about four themes that recur in two or more of the papers: the place of the trust in my account of Equity, the extent to which equity sides with (moral) angles, whether the morality invoked by Equity is thick or thin, and the question to what extent Equity as it emerges from the book can be the subject of future fusion projects.

The Law of Equity is a unique junction where doctrinal private law, moral theory, and social perceptions of justice meet. This book explores the general principles that underlie Equity’s intervention in the Common Law, with Chapter 1 arguing that Equity should be preserved as a separate body of law which aims to align moral and legal duties in private law. Chapter 2 discusses the importance of proprietary estoppel and concludes with the argument that Equity, via the doctrine of proprietary estoppel, is redressing a significant failure in the Common Law to tackle behaviour that disregards both morality and efficiency. Chapter 3 deals with fiduciary law, highlighting the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. Chapter 4 examines the clean hands doctrine, in which Equity employs the concept of integrity to construct a coherent system of reasoning about this highly-complex area. Finally, Chapter 5 discusses some findings from the analysis of fiduciary law, proprietary estoppel, and the clean hands doctrine. It highlights the family resemblance between the different doctrines we survey, and points out three areas where the distinctive nature of Equity serves the legal ideal of Accountability Correspondence, in a way that often increases the efficiency of the system.

This chapter explains why Equity should be kept as an independent vibrant body of law. It opens by discussing two strands of the opposition to the dualist system of Equity and Common Law: the fusion project, which advances the idea that the differences between Equity and Common Law ought to be ironed out so as to create one seamless cloth of private law; and the ‘conscionability scepticism’, which rejects the standard of conscience—the most familiar characteristic of Equity. The chapter analyses both views in terms of the Rule of Law (ROL) ideal and goes on to argue that Equity promotes a legal virtue that is neglected by Common Law’s fixation on the ROL ideal: the ‘Accountability Correspondence’. I then attempt to show how Equity reintroduces an essential equilibrium between Accountability Correspondence and the ROL, and the dangers of neglecting to promote such equilibrium. The chapter then explains why the characteristics most associated with Equity, namely, the use of flexible, ad hoc, ex post morally freighted principles, are necessary for the attainment of this goal. Next, I contend that the standard of conscionability—the epitome of Equity’s unique mode of action, is not at all as hostile to the ROL ideal as many conscionability sceptics claim.

This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.

This chapter examines the importance of proprietary estoppel (PE) in terms of Equity’s mission of aligning moral responsibility with legal liability, focusing on PE claims that are based on a ‘common expectation’ that arises in the context of pre-contractual negotiations. It first considers what Thomas Scanlon calls Principle L (for Loss prevention) and how its tort-like exposition misses—or glosses over—the voluntary modus of the loss prevention obligation (LPO). It then explains how the legal enforcement of LPOs can be justified from the perspectives of justice and efficiency, and how the conscionability element enables the courts to balance the Rule of Law (ROL) and Accountability Correspondence in the regulation of the pre-contractual stage. It concludes with the argument that Equity, via the doctrine of PE, is redressing a significant failure in the Common Law to tackle behaviour that disregards both morality and efficiency.

The ‘acquiescence’ category of proprietary estoppel is a rare example of responsibility for pure omissions in private law. On liberal‐individualistic theories of ownership, the policy considerations against liability for nondoing are exceptionally powerful in the context of rights over land. Nevertheless, I argue that in proprietary estoppel the law is justified in imposing a duty on the right‐holder to alert a stranger when his actions are based on a mistake. Owners of property rights are under what Honoré termed a ‘special duty’ to contribute to the social good of efficient market for land by publicising their rights. This ‘duty to speak’ is however relatively weak and cannot completely suppress considerations against liability for omission. While liability in the acquiescence category can be justified in principle, the current law, in which owners who failed to correct the mistake of the relying party incur similar liability to owners who actively encouraged the other party to rely, is untenable.

The paper discusses the the locus poenitentiae rule, under which property transferred for an illegal purpose can be recovered under a resulting trust (or, indeed, at common law) where the transferor withdraws from the transaction before any illegality has been committed. Written from the standpoint of a moral philosopher, the paper asks what differences it makes whether a transferor sincerely repents of her wrongful intentions, and whether she withdraws before or after the date of her contemplated wrongdoing.

The paper argues that there are good reasons to frame the categories of equitable liability around the concept of conscience. A quick look at recent case law reveals an increasing use of conscience categories to discourage overly selfish behaviour among parties to commercial relationships. Critics discard ‘conscionability’ as an empty category of reference, or see it as a dangerously subjective point of reference. I want to show that the critics assume a very specific, and controversial, model of conscience in which it is a mere subjective psychological disposition to follow one’s hunch about right and wrong. Instead, conscionability should be interpreted in accordance with the Kantian objectivist model, as referring to the point of convergence between people’s motivation to do good and their commitment to objective moral norms. On this model, conscience has a strong public aspect as the reasons on which it operates apply to all reasonable human beings at all times.