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This chapter explores leading trust developments using the property-based account. It first explains the nature of the beneficial interest, which is a residual claim to the assets in the trust fund, subject to claims of trustees, creditors, and other beneficiaries. It further elaborates on why trusts must eventually terminate and why developments such as perpetual trusts and non-charitable purpose trusts are flawed. This chapter also examines trustee exemption clauses and argues that, from an efficiency perspective, they are acceptable only if another party becomes responsible for the trustee's exempted activities. Finally, it argues that there are boundaries to how much a settlor can influence and control a trust. Trusts purportedly for beneficiaries are no longer so when beneficiaries cannot be certain that they hold the residual claim to assets in the trust fund.

This chapter shows the restoration of property in law and in economics and the development of the fund concept. The key to restoring property as a coherent idea in law is to de-emphasize the right to exclude as traditionally understood. Nowadays, the right to exclude is no longer seen as a prerequisite to finding property. In trusts and beneficial interests, however, the right to exclude returns in a different guise and provides the foundation for understanding property in a fund. Property in a fund is a legal interest that is distinct from property in the fund's underlying assets. In economics, property has recently been explained as a coherent concept and its in rem nature can be justified on grounds of conserving information-processing costs.

Westdeutsche Landesbank Girozentrale v Islington LBC decided, and all the other swaps cases accepted, that a claimant recovering enrichment transferred under a void contract had no right in rem. Rights in personam and rights in rem are differentiated according to their exigibility. The law of obligations and the law of property are the two great pillars of private law. The law of obligations is the law of rights in personam and the law of property is the law of rights in rem. The law as to the incidence of rights in rem in response to unjust enrichment is in a very poor state. This chapter first describes the different rights in rem which can be generated by unjust enrichment and then turns to their actual incidence. Three different proprietary responses are considered, namely, beneficial interests, powers in rem, and security interests. The right in traceable substitutes is also discussed.

This chapter examines the estate cases of the McCaig siblings, John Stuart and Catherine. The cases reported between 1905 and 1907 were brought by Catherine McCaig against the University Court of the University of Glasgow, who were the sole trustees under a will by her brother, John Stuart McCaig. Catherine sought to challenge the provisions of her brother's will on the grounds that these provisions were vague and uncertain and did not convey any beneficial interest to an individual person, a body of persons, or the general public. It is one of the oddities of these cases that Catherine McCaig's own testamentary disposition contained very similar provisions which were also challenged on her death on the same grounds.