chapter
16 Pages

FIRST SURFACE ofthe

What is the nature of the beneficiary's interest? At one level, the debate is so hackneyed that it is hardly worth recalling - and yet the history does open up some interesting issues. Austin, following through the project of organising the law into neat categories, attempted to use the civilian distinction, between rights in personam and rights in rem, as one system of his classification of law and declared beneficial rights to be in rem, that is, in the property itself, the trust fund. Maitland, very robustly, said that Austin had got it wrong, not, that is, the system of classification, but rather, where he placed the beneficiaries' rights: to Maitland, on the basis of his historical material, they were clearly in personam, being rights derived from the beneficiaries' rights against the trustees, and not, historically, from any specific rights in relation to the fund. However, Maitland, whilst still holding to the classificationsystem, and insisting on the specificity of the origin of the beneficial interest, could also be very pragmatic, the right may be in analytical juridical tenus personal, but: '... has been so treated that it has come to look like a true proprietary right.'lBAnd:

Despite the reference to 'ordinary thought of an Englishman', Maitland is not here referring to 'ordinary respect' which makes these rights 'almost as valuable', he is referring to the extensive doctrinal framework which creates such an effect, a framework which might be read as presuming such an origin. Like Austin before him, and with the full impact of Darwinian thinking behind him, he had to make each element fit within a classificatory frame. But does one try to classify through appearance or through origin? By emphasising the latter, Maitland was able to maintain an integrity for equity,

equity was about actions in personam. The whole of equity. Then, lawyer as he was, he had to reconcile his system of classification with his knowledge of 'appearances', doctrinal reality; he did this by saying not that it was wrong, but rather, it has come to be seen this way. By attempting to recognise the pragmatic as well as the pure, he tried to have it both ways. What never occurred to him was to challenge the classification system per se:

Martin, having briefly reviewed the debate, and emphasising that equitable rights are indeed in personam, then, rather lamely I trunk, says: '[P]erhaps the better view is that the beneficiary's interest is suigeneris.'22