The Unbearable Lightness of Property - alastairhudson.com

principally bound up in the trade marks they licence and the cash flows they receive
from such licences. Second, the offshore tax avoidance communities who seek to rely
on the trust structure as a convenient vehicle for holding property but who contend
that the proprietary nature of rights in such a trust should be capable of dilution into
mere contractual claims so that the investor can avoid any liability to tax which would
otherwise have come part and parcel of her equitable ownership. Third, and related to
the second, investment in a unit trust which is considered by some to be equivalent to
a mere contract on the basis that the proprietary aspect of the investment arrangement
is of no practical benefit to the investor who would prefer to rely on financial
regulatory protection and the law of contract in most circumstances.
There were also situations in which some property relationships appeared to have
lightness by virtue of their vagueness. First, situations in which proprietary rights are
asserted over assets which are in themselves merely evidence of personal claims.
Examples were choses in action generally, title in bank accounts and rights in
financial products. Second, situations in which assets have been accepted as
constituting property even though they represented merely cash flows derived from
choses in action which were themselves not transferable, and therefore not property
within the traditional conception of a right in property. 155
Contexts in which property relations appear to have weight were those in which
ordinary human beings inter-act with their homes – all of the burdens of insurance,
maintenance and protection; the emotional investment in a home, the attention
lavished on a car, the kitchen drawer full of warranties for electrical goods. All of
these are the measures of modern life; these slips of paper and promises to make
payment if chattels (real or personal) do not perform as warranted are the little
additions that constitute our lives. As we hide within the frailties of our
“phenomenally stationary, resting organisms”, perhaps we need to reflect on a
property law which is currently conspiring to mark the lines of flight of the
cosmopolitan elite and to mark the perimeter fence of the ambitions of everyone else.
155 The latter is the argument considered by Penner, The Idea of Property in Law, Oxford University
Press, 1997, 105.
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