Kelvin Low on ‘Property’ as polyseme and its implications for trust ‘property’ (Journal of Equity)

"‘Property’ as polyseme and its implications for trust ‘property’"
Kelvin Low
Journal of Equity, Volume 18, Part 2, pp. 107 - 130
Published: February 2025

Abstract: The trust may be English law’s “greatest and most distinctive achievement … in the field of jurisprudence” but it is likely to also be its most confounding. A fierce debate - often cast in dualistic terms - has raged for more than a century over whether a beneficiary’s interest under a trust is proprietary or obligational. Upon closer examination, some of the disagreements are less substantive and more semantic. At the heart of this debate lies the ambiguity inherent in the meaning of the word “property” itself. Yet, although equitable “property” may not be identical to legal “property” (indeed, tangible legal “property” is fundamentally different from intangible legal “property”), this does not make it any less properly regarded as “property”. Rather than being a mere mimic or metaphor, equitable “property” simply secures exclusive control to a resource in a different, indirect, manner for equitable “owners”. “Property” is a polyseme, where a word has different meanings but those meanings are related so that even though it is different from legal “property”, it is no less truly “property”. The primary objective of this clarification is to serve as a via media to reconcile some of the apparently opposing views that have arisen in this debate. However, it also pushes back against certain revisionist reforms proposed for equitable “property” that fail to acknowledge the fundamentally different nature of equitable "property" to legal "property". The understanding of equitable “property” proposed also carries implications for the English Law Commission's conception of digital assets as third things that supposedly carry no rights until they are interfered with.

The paper is also available on SSRN, please click here.