This article seeks to uphold the Interest Theory of legal rights by arguing that such a theory can withstand objections and handle difficulties that are often posed against it. Building on the author’s previous defences of the Interest Theory, the present article also seeks to expose some serious shortcomings in competing theories. Among the topics covered are the role of legal powers of enforcing or waiving legal rights; the possibility of rights to be mistreated; and the status of inoperative rights. In each case, so the article argues, the complexities of the issues involved can best be handled by a theory which maintains that the essential function of legal rights is the protection of various aspects of people’s well-being.

Few lawyers would dissent from the view, voiced by the Law Commission in 1989 in their Report on Trusts of Land, that the trust for sale mechanism, introduced in 1926 to regulate the co-ownership of land, had for long ceased to be appropriate to the conditions of modern home ownership. Every conveyancing practitioner will have experienced the difficulty of explaining to clients about to marry that the matrimonial home which they were so eagerly looking forward to occupying would by law be owned by them as trustees, subject to an immediate binding trust for sale. No doubt in practice discretion played the better part of valour. Soon after qualifying, solicitors learned to abandon any attempt to explore the mysteries of such an apparent absurdity.

Much has changed since 1925, even in land law. The emergence of principles of proprietary estoppel has been one of the most striking developments. For some litigants, these principles have been a source of new opportunities; for many judges and academics, they have been a source of new problems. It is therefore no surprise that, by means of what is now section 116 of the Land Registration Act 2002, the Law Commission attempted to deal with one of these problems, albeit only in disputes relating to registered land.

This article takes as its starting point three ground-breaking articles by Len Sealy in the 1960s, and examines their lasting impact on the modern law of fiduciaries. It includes a detailed consideration of the modern tendency to describe rather than define fiduciaries; it critiques the current readiness to merge fiduciaries with other power-holders, thus ignoring the significant differences between the duties of loyalty in issue in the two contexts; and finally it evaluates and defends the modern approach to fiduciary remedies, especially equitable compensation.

The UK Supreme Court noted in Smith v Chief Constable of Sussex Police that the approach to causation in claims based on Article 2 of the European Convention on Human Rights (ECHR) is “looser” than in negligence. While the but-for test is generally applied in negligence, in Article 2 claims “it appears sufficient generally to establish merely that [the claimant] lost a substantial chance” of avoiding harm. The English courts have not always been comfortable with this divergence. In Re E. (A Child) Lady Hale stated that she was “troubled by the rejection of the ‘but for’ test” by the European Court of Human Rights (ECtHR). In part this discomfort seems attributable to a lack of detailed exposition as to how the approaches to causation differ in negligence and human rights law. The lack of clarity as to what the “looser” approach consists of is unsatisfactory. Although the reference to causation in Smith was a relatively minor observation in the wider decision not to develop the duty of care owed by the police in negligence to a victim of crime, we cannot appreciate whether the difference in approach is justified without first understanding what the difference actually is. In response, one aim of this paper is to draw together key decisions on causation in the ECHR to identify what the “looser” approach entails and how it differs from the approach in negligence.

The jubilee of the Journal happens to coincide with the centenary of Head v. Tattersall, the well-known but troublesome case in which the buyer of a horse was allowed to exercise a contractual right to return it (for failure to answer a warranty that it “had been hunted with the Bicester hounds”), despite the fact that it had been accidentally injured in the meantime and could be restored to the seller only in a damaged state. Most contract textbooks cite this as the classic instance of the condition subsequent, by virtue of which a contract or obligation, although initially effective, ceases to operate on the occurence of a specified event. It is apparent, however, on closer analysis that it was not the contract or any aspect of it which was terminated because the horse failed to meet the warranty, but the buyer's title: in other words, the property in the horse passed to the buyer immediately, but defeasibly, so that when he rejected the horse he divested himself of the title and revested it in the seller. Even this explanation leaves on one side the question of the damage sustained by the horse. In the language of the law of sale, it would be most natural to regard this issue as one of risk, and to say that the court held in effect, and indeed perhaps expressly, that the horse was at the seller's risk during the period allowed for its return.

This article argues certainty in trusts is better understood by recognising a fourth certainty: “distributional certainty”. Distributional certainty is required in private trusts that involve dividing the property between beneficiaries: their shares must be clear. Distributional uncertainty is not, as usually understood, merely an instance of uncertainty of property: it has differing consequences, special resolution techniques, and may explain “administrative unworkability” in discretionary trusts. Distributional certainty is not required in charitable trusts. But this is not, as usually understood, merely an instance of the rule that charitable trusts do not need certainty of objects: it is an independent proposition.