The philosophical significance of the following, in particular for the understanding of law, will be left for further posts. Just as one should perhaps understand some maths before embarking on the correct philosophical understanding of mathematics, or one should understand some physics before embarking on the correct philosophical understanding of physics, so perhaps one should try to understand some law before embarking on the correct philosophical understanding of law. So this example is offered as an entry point to understanding the law and legal thinking, which may be of interest in itself, aside from how it might be significant for the philosophical understanding of the law. The Legal Problem in Pilcher-v-Rawlins A trust for a house may be used as a management device: the settlor of the trust does not want to give the house to the beneficiary outright (for whatever reason – that the beneficiary might squander the asset, is too young etc.), and so gives it to a trustee to manage it for the beneficiary. In English law this trust device cannot be used without giving the trustee the legal title or the common law ownership of the house (which they hold ‘for the benefit’ of the beneficiary, so that the beneficiary may be regarded as having the beneficial or ‘equitable’ ownership). The question raised in Pilcher is what happens if the trustee fraudulently passes off this legal title as being free of a trust i.e. they ‘hide’ that their common law ownership is subject to a trust – and sells the house to a bona fide purchaser [‘BFP’]? Say the trustee disappears with the funds from sale and may not be found, or if found may have dissipated the funds:- both the beneficiary and the BFP now want to claim their ‘ownership’ in the house – having a mere remedy against the fraudulent trustee is second-best to having the secure asset of the house itself. So the issue is whether the BFP takes their ownership free of the ‘hidden’ trust (so that the beneficiary loses their beneficial or ‘equitable’ ownership) or whether the beneficiary retains their beneficial interest/ownership (with the BFP’s legal title subject to same trust that bound the fraudulent trustee)? First exercise. If you were the judge, what would you do? What legal reasons would you give? Second exercise [to which there is a clue right at the bottom of this post]. In Pilcher the result is that the Plaintiff, who is the beneficiary suing in the Court of Equity for the trust to be enforced against the BFP, is “non-suited” for lack of jurisdiction, and the Court of Equity rules that the BFP’s good faith purchase of “a legal estate” for its proper value gives the BFP an unanswerable defence to any claim by the Plaintiff-beneficiary. Given this, what is wrong with the following account of Pilcher (published by a tutor in law at Oxford)? [Btw market overt is an old common law rule, from feudal times, that if a BFP bought goods at certain designated ‘open markets’ then the BFP would get ownership even if the property was stolen property – an exception to the general common law rule that a BFP cannot get good title buying stolen property.] “What is truly odd about the bona fide purchaser rule in Equity and the market overt rule at common law is that they stand out from the normal policy of the law, particularly in respect of land. In general, the common law (in the narrow sense) protects vested rights. It is in this sense a capitalist system. Owners do not lose ownership by a mercantile transaction to which they have not consented, and the bona fide purchaser from one who only appeared to have the right to sell, will have to restore the property to the owner. Nor, inside Equity itself, will transactions defeat vested equitable proprietary interests: the bona fide purchaser of an equitable interest from one who had no right to transfer it will find he has nothing. Only in the third case of a conflict between the beneficiary under a trust and a transferee of a legal estate from the trustee does security of transactions prevail over security of vested proprietary rights. The Pilcher v. Rawlins rule cannot therefore sensibly be explained by fair play (unless one is prepared to castigate the ‘vested rights’ solution as unfair), and indeed it is as hard to see the moral superiority of one side over the other as it is hard to disapprove of a system which comes down clearly and consistently on one side or the other. The only unacceptable position must be the one we inherit, where we sometimes prefer vested rights and at other times transactions, without letting the purchaser of a legal estate know in advance which rule will apply to him. (The bona fide purchaser of a legal estate cannot tell in advance either from the nature of the location or the nature of the subject matter being transferred, whether he is buying from a fraudulent trustee or from someone without legal title at all who is able to misrepresent himself as legal owner, and thus has no way in advance of knowing whether he will win or lose. The dishonest trustee and the common law crook will look identical to him.) The English explanation of this particular rule comes from constitutional law, from the relationship between common law and Equity, and was clearly seen by at least one of the judges in Pilcher v. Rawlins. It is a matter of jurisdiction, not a matter of policy.” [Clue: this account of Pilcher is very, very wrong.] Ldn On Saturday, 7 December 2013, 17:40, "Jlsperanza@xxxxxxx" <Jlsperanza@xxxxxxx> wrote: In a message dated 11/30/2013 1:46:31 P.M. Eastern Standard Time, profdritchie@xxxxxxxxx writes in a post about World Wide Words on 'drown': "I have been aware of a gap between some kind of legal or medical definition and the more common sense since a friend died in the late seventies or early eighties of "near drowning." It didn't seem like the sort of thing a person could die of." This from today's "World Wide Words", World Wide Words is copyright © Michael Quinion 2013 http://www.worldwidewords.org. re: "a weakening in sense of drown drew numerous comments" It may have Griceian implicatures. Or not. Cheers Speranza --- "John Douglas noted that a similar shift has already occurred with electrocute, which originally meant to execute a person by means of electricity. It soon shifted to include dying by an accidental shock and has since come to mean suffering either injury or death. Gregory Harris similarly commented on starve, which originally meant to die by any means (a close relative, German sterben, retains that meaning) but in Middle English that sense was passed to die, a word from Old Norse, and starve took on the specific sense of dying through hunger; it has now become diluted in meaning to the point that it can colloquially mean merely that the speaker is very hungry; we have to say starve to death to make it clear that the process has been fatal. Michael Moore pointed out that a parallel change is beginning to take place with drown because we are seeing examples of drown to death." "Dr John Smith commented, “Common usage in the US medical community describes near-drowning as the condition following immersion from which resuscitation is successful. If unsuccessful, the patient’s death is due to drowning."" "The fuzziness about the finality of drown is not new. Dick Kenney reported, “In 1970, I went with a fellow worker onto a Massachusetts low tide flat to dig clams. He told me on the long way out that he drowned once and was wary of incoming tides. I was kind of startled by this statement as he looked pretty much alive as far as I could tell. Since then, I’ve heard other uses of drowned where the victim survived.” On the American Dialect Society list, John Baker noted a couple of examples from 1869 that referred to a person having drowned but then been resuscitated."