Party Autonomy in International Property Law - Peace Palace Library

4. Party Autonomy and Property Rights
involve the transfer of a contractual right but rather the creation of a
new right in the ‘assignee’, the subject matter of which is the ‘assignor’s’
contractual right as against the promisor. In this respect it differs from a
statutory assignment permitted by section 136 of the Law of Property Act
1925, which does involve a true transfer.
The terms of trusts can be as many and varied as the wit of human imagination
allows. There can be any number of beneficiaries, some as yet
unborn, whose rights are subject to any number of conditions precedent or
subsequent. The startling variety in the content of the right of a beneficiary
under a trust does not offend the numerus clausus principle because
a trust does not involve a right exigible against the whole world, but
merely a right exigible against whoever is the holder of the right, which
is the subject matter of the trust, from time to time. There is, therefore,
no question of imposing undiscoverable duties of an idiosyncratic form
upon all of rest of the world.
Similarly, trusts of rights do not require any of the steps or forms for the
transfer of rights to be satisfied. They do not require the satisfaction of
any of these steps because they do not involve anything being conveyed
or transferred at all.
We find a similar division between the transfer of rights and the creation
of new rights in relation to pre-existing rights in relation to secured
transactions. To understand this it is necessary to explain the difference
between a mortgage and a charge, a distinction which can be lost sight of
because of their functional similarity.
A mortgage involves the transfer, or conveyance, of the right which is
being used for purposes of security. So, just as with an absolute transfer,
to be effective if what is being conveyed is a right other than a right to
goods, the relevant notification, registration or formal step must be taken.
The equity of redemption is the right to have transferred back the right
conveyed for purposes of security upon the performance of the obligation
secured.
A charge differs from a trust because of the different obligations a trustee
and a chargor are under with respect to the underlying right (or, which
is identical, because of the different rights the beneficiary or the chargee
have with respect to the underlying right). If A is obliged to hold a right
by way of security for B, this is a charge. A is charged (i.e. bound, under
Robert Stevens
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