[lit-ideas] Re: You be the judge/What is wrong with this picture?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Mon, 9 Dec 2013 05:33:13 +0000 (GMT)
I appreciate Richard's brave attempt to enter the field of legal reasoning
here. When I first glanced I saw the word "fraud" and thought, briefly, that
Richard had seen one of the keys to Pilcher: which is fraud-prevention. But it
turns out Richard is a critic of Pilcher, like the tutor, and his idea about
"fraud" is about "fraud" in a very different place to where it is to be feared.
>It's a simple question of math:>
It's not math or even "maths", albeit we could put things in terms of "game
theory", but let that go....
>When three players
are involved (Beneficiary, Trustee and Purchaser), a win-win situation can be
created by complicity to commit fraud between the last two;>
The use of win-win here could be expunged without loss. But Richard is right
that a trustee and purchaser could connive a fraudulent transfer. What he
overlooks is that there is an answer to that in the Pilcher rule: the purchaser
only keeps if they show to the court's satisfaction that they paid a proper
price and they had 'good faith' - otherwise they fall short of being a BFP, and
it is only a BFP 'for value' [i.e. proper market value] who gets to keep, a
mere purchaser does not. The tutor is right when he says, elsewhere than in the
lengthy passage quoted, that in this respect a BFP bears a heavy burden. The
Court of Equity will be astute to detect any fraud or connivance between
trustee and purchaser [trust me and the tutor on this]. The fact the BFP must
pay proper value means there is little, if any, financial incentive for such a
fraud, for the BFP only gets what they paid for and not more: and the court
will also be alert to any connivance,
which would vitiate 'good faith'.
>remove the
middleman, the Trustee, and all that can be achieved by fraud is a loss for one
(the Beneficiary) and a win for the other (the Purchaser).>
Not sure I quite understand this.
>The label of bona
fide purchaser no more establishes the above-board purchase of the property
than does the name trustee guarantee that the trustee can be trusted to act for
the benefit of the beneficiary.>
The mere "label" may not establish this, of course [labels rarely do]: but,
again trust me and the tutor here, the high level of proof the court will
require of a purchaser before finding them a BFP is such that it does establish
the above-board purchase of the property. My view and the tutor's are here as
one.
What Richard has overlooked, in terms of possible fraud by connivance, is that
the two most likely frauds are ones that would occur only if the beneficiary
keeps as against the BFP - and preventing these frauds is therefore good reason
why the beneficiary must lose. These two frauds are fraud by connivance between
trustee and (i) the settlor of the trust and (ii) the beneficiary: for they
could connive to 'double the asset' of the house by selling to a BFP if they
knew that, as well as making off with the BFP's money for the purchase, the
beneficiary would keep their interest in the house. Simples. And even without
connivance, a trustee might be more prone to fraud if they knew they were just
fleecing the BFP because the beneficiary will keep their property-interest in
the house. And this is before we take into account the key fact that the trust
can be set up so as to likely prevent any fraud, connived or unconnived.
Richard is looking for
fraud-prevention in the wrong place and not seeing it in all the right places.
Richard also seems to endorse "Speranza's example
of the Getty Museum's looking-the-other-way in cases of dubious provenance" as
"very much to the point". It isn't; and I hope to get round to explaining this
more fully. But here may I emphasise something that is also key to the Pilcher
result - that it concerns not a chattel like a picture but a "legal estate"
like a house. Aside from fraud-prevention, on which there is more to be said
than above, the other key reason for the Pilcher result has to do with
characteristics of a "legal estate" as opposed to a chattel. (Look: another
clue.)
Richard concludes by impugning my"failure
to be disinterested". What can I say in my defence, and why would anyone
believe me? In any case, I rely not on disinterestedness but on the accuracy of
the analysis proposed. As regards "fraud", neither me nor the tutor impugn
Pilcher on the ground it facilitates fraud between trustee and BFP - it
doesn't, as I've explained above: and Pilcher does not facilitate fraud between
trustee and mere purchaser either, because a mere purchaser who is not a BFP
does not get to keep the "legal estate" free of the trust.
>The circular argument is always vicious because it allows
an interested party to argue that its argument is right, or that best
explanations (for the length of a meter or the key to Wittgenstein) are
constitutive of states of affairs.>
There is nothing circular in my analysis. Take another look.
>The tutor has his heart and head in the right
place: he sees the Pilcher decision as problematic and the question a
constitutional one.>
In due course, putting some of the above points and others together, I hope to
show that, far from being "problematic", the Pilcher result is practically
inevitable. (So "inevitable" that Parliament would have intervened had the
courts decided differently.) Also, the tutor's criticism of Pilcher, which is
set out in the quoted passage, is wrongheaded - we may come to back to looking
more closely at his criticism and whether it stands up. Lastly, the tutor is
wrong, and Richard is wrong, in thinking the Pilcher result owes to
constitutional law - not in the slightest does it, and none of the
considerations canvassed in this post are "constitutional" ones. (Trust me, I'm
a lawyer.) The tutor has mistaken the court's conclusion in Pilcher, that it
lacks jurisdiction, for the basis of its decision - but that conclusion is not
the basis, but rather a conclusion from the basis. And the basis has nothing to
do with constitutional law [no more than market overt]
and everything to do with having a practical working rule - one that protects
the worth of a "legal estate" and prevents fraud. (Fiddlesticks, just given
away the keys to Pilcher in a nutshell.)
Donal
On Monday, 9 December 2013, 1:26, Richard Henninge
<RichardHenninge@xxxxxxxxxxx> wrote:
It's a simple question of math: When three players
are involved (Beneficiary, Trustee and Purchaser), a win-win situation can be
created by complicity to commit fraud between the last two; remove the
middleman, the Trustee, and all that can be achieved by fraud is a loss for one
(the Beneficiary) and a win for the other (the Purchaser). The label of bona
fide purchaser no more establishes the above-board purchase of the property
than does the name trustee guarantee that the trustee can be trusted to act for
the benefit of the beneficiary. And where, as in Pilcher, the result of
the court's decision is in any way conducive to creating a lose-win-win
situation, the door is opened wide to corruption and crime. Speranza's example
of the Getty Museum's looking-the-other-way in cases of dubious provenance is
very much to the point. The museum (equivalent to the Purchaser in Pilcher),
looks to gain from the purchase from a middleman who is not
the rightful owner of the artwork (equivalent to the Trustee who is not the
rightful owner of the property). The loser is the rightful owner (like the
Beneficiary in Pilcher) who woke up one day to find a clean piece of
wall where a beloved painting used to hang (or his future estate sold by his
missing trustee-crook to a third party), and a government or court system that
was fine with that.
The problem with McEvoy's thinking is his failure
to be disinterested. The circular argument is always vicious because it allows
an interested party to argue that its argument is right, or that best
explanations (for the length of a meter or the key to Wittgenstein) are
constitutive of states of affairs. The tutor has his heart and head in the
right
place: he sees the Pilcher decision as problematic and the question a
constitutional one. The Getty Museum gave the artwork back to its rightful
owner; the "English" court system basically said in Pilcher that it
will "look the other way" sometimes and let the purchaser of stolen goods keep
the goods. Maybe it just depends on which side (of the ocean) you're
on.
Richard Henninge
University of Mainz
----- Original Message -----
>From: Donal McEvoy
>To: lit-ideas@xxxxxxxxxxxxx
>Sent: Sunday, December 08, 2013 8:49 PM
>Subject: [lit-ideas] Re: You be the judge/What is wrong with this picture?
>
>
>JLS's efforts, including at some legal research, are appreciated. But the
>exercises do not depend on any legal research but only on thinking out,
>accurately, what is at stake. This is not perhaps so easy. It may be easy to
>go off at tangents or to think in terms which are inadequate e.g. in terms
>of which party is 'most deserving'.
>
>
>
>JLS' efforts, I feel, are not in the direction of getting firmly to grips
>with Pilcher - with 'the problem' in Pilcher. This is a question of accurate
>characterisation - it is not that any characterisation will do or that one
>characterisation is as good as another e.g. the tutor characterises Pilcher
>in terms of a straightforward opposition between security of transactions and
>security of vested interests - but, as we may see, this is wrong because it
>is wholly inadequate to what is at stake, and because Pilcher, unlike market
>overt, is not a case where there is a straightforward opposition as the tutor
>suggests.
>
>
>
>We have left the world of merely academic dispute. We are in the real world
>where our characterisation affects the result and the result affects the real
>world. This kind of problem is not about philosophical game-playing,
>lighthearted chit-chat or exchanges of airy-fairy opinion. This kind of legal
>argument can leave cruelly exposed half-baked talk from people who cannot
>properly get to grips with what is at stake (the law tutor, it may be
>demonstrated, is one of these).
>
>
>
>The depth of the problem in Pilcher is related to the depth of what is at
>stake: as it turns out the respective claims of the parties, in terms of the
>parties being 'more deserving' as against each other, barely scrapes the
>surface of what is at stake - and this is partly why the question of which
>party is 'most deserving' is not key to the analysis of what is at stake
>(another reason is that, as the law looks at these things, in Pilcher neither
>party is 'more deserving' as against the other: one of the few points that
>the tutor seems to get right).
>
>
>
>Spoiler alert again. To think on the right lines, focus on two things: (1)
>what will be effect of the result in cases, like Pilcher, where there is a
>trust of a house that is sold, and (2) what will be the effect of the result
>in cases (the vast majority) where there is no trust of a house that is sold?
>There. Said it. The solution is there, in the answers to (1) and (2). So
>what are the answers - what would be the effects? And what does this
>consequential reasoning tell us as to what should be the rule here and
>therefore the result?
>
>
>
>Surely this stuff is simple enough for educated people, who know how to speak
>their brains about the likes of Heidegger and Wittgenstein?
>
>
>
>Dnl
>Ldn
>
>
>
>
>
>
>On Sunday, 8 December 2013, 18:29, "Jlsperanza@xxxxxxx" <Jlsperanza@xxxxxxx>
>wrote:
>
>In a message dated 12/8/2013 6:51:43 A.M. Eastern Standard Time,
>donalmcevoyuk@xxxxxxxxxxx writes:
>It's not that "technical", compared to other fields -
including
>philosophy.
>
>But then I would focus on the
semantics, or as Geary says, when diminishing
>or minimising a topic, the
'semantics' (the 'semantics' of "war").
>
>"Even an EXHAUSTIVE title
search of the chain of title would not give the
>purchaser complete
security, largely because of the principle, nemo dat
>quod
>non
habet ("no one gives what he does not have") --
>
>i. A owns x
>ii. B
'sells' x (which belongs to A).
>iii. C 'buys' x (which belongs to
A).
>
>"Nemo dat quod non habet".
>
>If we replace "dat" by 'sells',
we have a few analytic principles (axioms):
>
>I. No one gives what
he does not have.
>II. No one sells what he does not own.
>III. No one
buys what is not sold.
>
>----
>
>Oddly, there are a few
'implicatures' here.
>
>As Grice notes, it's not what _holds_ but what the
agent INTENDS that
>holds.
>
>So one may distinguish between the
('illocutionary') act of 'buying' and
>'selling' -- "I hereby sell",
"I hereby buy" -- from the INTENTION to sell
>and notably in this
case, the intention to buy (or not).
>
>If there are implicatures, there
are possibly entailments, too. In more
>than one 'sense' or
direction. Note ps.
below.
>
>Cheers,
>
>Speranza
>
>---
>
>"to entail" --
mid-14c., to "convert (an estate) into 'fee tail' (feudum
>talliatum)," from en- (1) "make" + taile "legal limitation,"
especially of
>inheritance, ruling who succeeds in ownership and
preventing it from being
>sold off, from Anglo-French taile, Old
French taillie, past participle of
>taillier "allot, cut to shape,"
from Late Latin taliare. Sense of "have
>consequences" is 1829, from
notion of "inseparable connection." Related:
>Entailed;
entailling.
>
>
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