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Published online by Cambridge University Press: 03 October 2000
The author considers the proposal of the Law Commission that the Rule against Perpetuities should be amended rather than abolished and emphasises the need for a balance between the freedom of the current generation and the freedom of future generations to control property. The article draws attention to the experience of Canada and the United States and suggests that experience undermines the Rule's economic rationale and that the Law Commission should consider recommending the Rule's abolition.
For comments or suggestions, I would like to thank Douglas Berman, Joel Dobris, Adam Hirsch, Mary-Hannah Jones, Robert Lynn, James Meeks, Gary Spitko, Joseph Stulberg, Lawrence Waggoner, William Wang, Stephen Ware, and the participants in a Faculty Workshop at the Ohio State University College of Law. For research support, I would like to thank the Ohio State University College of Law, the Ohio State University Office of Research (Seed Grant No. 221923), the Centre for Socio-Legal Studies, Oxford, and Wolfson College, Oxford.
1 This article presumes some familiarity with the Rule Against Perpetuities. Readers wishing to learn more about the Rule's basic operation should consult Megarry, R. and Wade, H.W.R., The Law of Real Property, 6th ed. (London, 2000), pp. 291–372Google Scholar.
2 E.g., Stake, J.E., “Darwin, Donations, and the Illusion of Dead Hand Control” (1990) 64 Tulane Law Review 705, 744–745Google Scholar.
3 E.g., Posner, R., Economic Analysis of the Law, 5th ed. (New York, 1998), p. 560Google Scholar.
4 This argument was put forward by Professor Lawrence Waggoner of the University of Michigan Law School in a letter to the author dated 23 June 1999.
5 Simes, L.M., “The Policy Against Perpetuities” (1955) 103 University of Pennsylvania Law Review 707, 723CrossRefGoogle Scholar.
6 Copies of this report can be downloaded from the Law Commission's website: http://www.open.gov.uk/lawcomm/homepage.htm. Subsequent page references to this report appear in parentheses.
7 The Law of Trusts: The Rules Against Perpetuities and Excessive Accumulations, Law Commission No. 133, p. 64.
8 Simes, op. cit., p. 723.
9 Simes, L.M., Public Policy and the Dead Hand (Ann Arbor, 1955)Google Scholar.
10 My review of the literature has failed to uncover anything quite like the discussion in this article. Coming closest are the symposium on “Time, Property Rights, and the Common Law” (1986) 64 Washington University Law Quarterly 661, and an article by A.J. Hirsch and W.K.S. Wang, “A Qualitative Theory of the Dead Hand” (1992) 68 Indiana Law Journal 1. Also worth reading is the historical analysis in Alexander, G.S., “The Dead Hand and the Law of Trusts in the Nineteenth Century” (1985) 37 Stanford Law Review 1189CrossRefGoogle Scholar.
11 This paragraph is based on the argument in Simes, Public Policy, pp. 58—59.
12 Simes, Public Policy, p. 58.
13 Simes, Public Policy, p. 59.
14 In its classic formulation, the Rule strikes down all interests that are not certain to vest or fail within the period measured by a life in being at the creation of the interest plus 21 years. Gray, J.C., The Rule Against Perpetuities, 4th ed. (Boston, 1942), p. 191Google Scholar. Many jurisdictions have replaced this requirement of initial certainty with a wait-and-see regime. In the united States, for example, the Uniform Statutory Rule Against Perpetuities (USRAP) contains a 90-year wait-and-see period. USRAP, s. 1(a)(2). The Commissioners’ report proposes a wait-and-see period of 125 years (pp. 133-134).
15 Brumfitt, J.H. (ed.), Voltaire's Candide (Oxford, 1968), p. 56Google Scholar.
16 Manitoba Perpetuities and Accumulations Act 1983. For commentary, see Ruth Deech, “The Rule Against Perpetuities Abolished” (1984) 4 Oxford Journal of Legal Studies 454.
17 Wisconsin Statutes, s. 700.16(5).
18 South Dakota Codified Laws, s. 43-5-8.
19 Idaho Code, s. 55.111.
20 Delaware Code, title 25, s. 503(a).
21 Illinois Compiled Statutes, ch. 765, s. 305/4(a)(8).
22 Ohio Revised Code, s. 2131.09(B)(1).
23 Maine Revised Statutes, ch. 5, s. 101-A.
24 Code of Maryland, s. 11-102(e).
25 New Jersey Statutes, s. 46:2F-9.
26 These laboratories are not perfect, of course, because states and countries differ in ways beyond whether or not they have abolished the Rule.
Laboratories of a different sort can be found in the Islamic world, where perpetuities are mandated rather than restricted. In Islamic law, property in a trust-like arrangement called a waqf must be held in perpetuity. On the economic consequences of this rule, see Schoenblum, J.A., “The Role of Legal Doctrine in the Decline of the Islamic Waqf’. A Comparison with the Trust” (1999) 32 Vanderbilt Journal of Transnational Law 1191Google Scholar.
27 See footnote 33.
28 Professor Williams's original example can be found in Smart, J.C.C. and Williams, B., Utilitarianism: For and Against (Cambridge, 1973), pp. 98–99CrossRefGoogle Scholar. The variation used here can be found in Chappell, T. and Crisp, R., “Utilitarianism” in Craig, E. (ed.), Routledge Encyclopaedia of Philosophy (Routledge, 1998), vol. 9, p. 556Google Scholar.
29 Dworkin, R., Taking Rights Seriously (Cambridge, Mass., 1977), p. 180Google Scholar.
30 Nozick, R., Anarchy, State, and Utopia (New York, 1974), p. 52Google Scholar.
31 This principle is discussed in Rawls, J., A Theory of Justice (Cambridge, Mass., 1971)Google Scholar, esp. ch. 3. In later writings, Professor Rawls has emphasised that this principle is designed to produce social and political justice; he is not speaking about principles to guide individual moral decisions. E.g., Rawls, J., “Fairness to Goodness” (1975) 84 Philosophical Review 536, 538CrossRefGoogle Scholar; Rawls, J., Political Liberalism (New York, 1993), pp. 22–28Google Scholar.
32 Rawls, Theory of Justice, pp. 136-137.
33 We can obtain some data about perpetual trusts now, for example the percentage of settlors who are creating them. Other data will obviously take longer to gather, such as the percentage of these trusts that endure beyond the number of years permitted by the commonlaw Rule.
