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The Economic Structure of TrustsTowards a Property-based Approach$
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M. W. Lau

Print publication date: 2011

Print ISBN-13: 9780199602407

Published to Oxford Scholarship Online: May 2011

DOI: 10.1093/acprof:oso/9780199602407.001.0001

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Reconceptualizing Property and Funds in Law and Economics

Reconceptualizing Property and Funds in Law and Economics

(p.125) 7 Reconceptualizing Property and Funds in Law and Economics
The Economic Structure of Trusts

M. W. Lau

Oxford University Press

This chapter shows the restoration of property in law and in economics and the development of the fund concept. The key to restoring property as a coherent idea in law is to de-emphasize the right to exclude as traditionally understood. Nowadays, the right to exclude is no longer seen as a prerequisite to finding property. In trusts and beneficial interests, however, the right to exclude returns in a different guise and provides the foundation for understanding property in a fund. Property in a fund is a legal interest that is distinct from property in the fund's underlying assets. In economics, property has recently been explained as a coherent concept and its in rem nature can be justified on grounds of conserving information-processing costs.

Keywords:   property, right to exclude, funds, beneficial interests, information processing costs, Thomas Merrill, Henry Smith, James Penner

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