James Penner

Voluntary Obligations and the Scope of the Law of Contract

By building upon Razs analysis of the spectrum of voluntary obligations, the author produces a typology of agreements, and then assesses the extent to which these different kinds of agreements underpin the common law of contract. While recognizing that the law of contract purports to deal with a broad range of voluntarily undertaken obligations, the typology of agreements suggests that the present law is primarily suited to dealing only with bargains. This suggests that there are situations in which agreements should be legally recognized, but which should not be dealt with by all of the conceptual tools of contract law, for these agreements and voluntary undertakings serve the interests of those undertaking them in significantly different ways than do bargains.

The (True) Nature of a Beneficiary’s Equitable Proprietary Interest under a Trust

In recent years Chambers, Smith, McFarlane and Stevens have all sought to explain the nature of equitable proprietary rights by way of the concept of a ‘right to (or ‘in’, or ‘against’) a right’. In this paper I argue that there is a sense in which this conceptualisation of the beneficiary’s equitable proprietary under a trust is illuminating, but that, rather than a right to the trustee’s possessory interest in tangible property, the ‘rights’ of the trustee in which the beneficiary is interested are the trustee’s powers of title. I also contend, in a ‘fusionist’ spirit, that equitable property interests should not be treated as a particular ‘legal kind’, but rather that only interests under trusts should be regarded as a distinct sort of property interest within the numerus clausas. I go on to show how the proposed analysis best explains (1) our notion of ‘beneficial interest’ under a trust; (2) why a trustee is not a residual claimant to the trust assets; (3) the interest of a discretionary object of a trust; (4) the rules of and rationale for tracing; and (5) the ‘automatic’ resulting trust.

The Analysis of Rights

The author argues that the interest theory of rights is clearly preferable to the choice theory of rights and that this is due in large part to the work of Raz and MacCormick. Critical scrutiny of their views, however, reveals a flawed conception of the way that rights reflect interests. The author contends that a superior relation between rights and interests can be formulated, in which rights are identified with a constellation of norms within a normative system which reflect the interests which justify them, but wherein rights are not coextensive with interests conceived as reasons for the imposition of duties.

Intergenerational Justice and the “Hereditary Principle”

Abstract Is it possible to justify the passing of property rights from one generation to the next, and the acquisition of citizenship rights, on the basis of inheritance? This paper raises two considerations which indicate that typical luck egalitarian arguments against the operation of any “hereditary principle” in the intergenerational succession of economic and political rights are not conclusive. Both considerations concern autonomy. The concept of inheritance can be seen to be justified when the social connectedness of individuals is appreciated – inheritance reflects the embeddedness of individuals in the lives and projects of others both in the past and in the future. So while there may be good liberal reasons to reject inheritance as a mode of property succession, for example that it might perpetuate or initiate unequal distributions, these do not begin to suggest that nothing can be said in its favor, morally speaking, if the autonomy of individuals is understood to be situated in particular social structures. A similar case can be made for the claim that rights to citizenship are best seen as reflecting a “duty to govern”; those most embedded in the life-ways of a community would appear to be best placed to shoulder this duty. Finally, the paper considers an argument from “familiarity,” which suggests that it is not wrong to favor to some extent individuals whose genetic and cultural characteristics reflect one’s own, and concludes that such a consideration can play a role in justifying to some extent the justification of a “hereditary principle.”