58 Property Law

as symbol, to the expectation of dividends offered by the new shares in London Merchant Securities plc) . . .

Notes and Questions 2.3

1In discussing an example similar to the bankruptcy example in the text (should a house jointly owned by a bankrupt and her partner be sold so that the bankrupt’s share can be realised for the benefit of her creditors), Rudden says later on in the article:

The particular problem could be solved by a policy decision of the legislator. On the one hand, Parliament might agree that a [creditor’s] interest is merely in the thing as wealth, whereas [the] family member’s interest is in the thing as a dwellinghouse, and so be led to lay down a clear if radical rule: that the . . . right of the creditor . . . is postponed to that of [the family member]. But a quite different policy might also be adopted, which held that the burden of a black sheep should fall on its kin rather than on a stranger dealing for value and in good faith: and this would lead to an equally clear if quite contrary rule. (Rudden, ‘Things as Thing and Things as Wealth’, p. 96)

Could similar policy considerations be raised in relation to the bankruptcy example? What arguments could be put forward for advocating the adoption of one policy rather than the other?

2If there is a dispute about entitlement to a thing between A and B and a court decides in favour of A, it can either order B to return the thing to A, or order B to pay damages to A to compensate A for his loss. Would the distinction between things as thing and things as wealth be useful to the court in deciding which of the two it should order? Would it instead be more useful to adopt either the conventional fungible/non-fungible distinction noted in section 2.4.4.1 above, or Radin’s personal property/fungible distinction noted in section 2.4.4.3 above?