Merrill and Smith’S intermediate rights lying between contract and property: Are Singapore trusts and secured transactions drifting away from English law towards American law?

Abstract

© 2019, National University of Singapore, Faculty of Law. All rights reserved. This article analyses intermediate rights lying between contract and property described by Merrill and Smith and the disclosure and protective strategies they suggest the law has adopted to deal with them. It finds their views confirmed by recent developments in the Singapore law of trusts and secured transactions. For the former, the nascent recognition that a beneficial interest is “a right against a right” has given it the flexibility to deal with both family and commercial trusts by weakening the property-based beneficiary principle and recognizing the separate entity of the trust fund. In the latter, Singapore courts are characterizing more unusual forms of security as a registrable floating charge that is not seen as a proprietary interest. The move towards more function as opposed to form here may reflect a continental drift away from English law towards American law as Singapore adapts to Chapter 11 type provisions introduced in May 2017 into its corporate restructuring legislation.