Is It Time To Modernize The Laws Of Old England? Arguments For Statutory Adjustments To The Rule In Shelley’s Case And The Rule Against Perpetuities


Publication| Real Estate Services

One of the pleasures of practicing real estate law in Delaware is the comparative absence of statutory preemptions of the common law and the relative scarcity of case law. This can spur one’s historic interests in delving into the common law that Delaware has preserved from its colonial origins. The flipside of this, of course, is that we Delaware lawyers remain saddled with arcane common law rules that seem at odds not just with modern commercial transactions but with the intent of the parties.

Two of these instances are the “Rule in Shelley’s Case” and the “Rule against Perpetuities.” Both have their origins in English common law of, respectively, the 16th and 17th centuries. Both came to Delaware by way of our colony’s adoption of the laws of England. And both remain part of Delaware’s common law in the twenty-first century. Perhaps, after half a millennium, it is time to rethink them both.

This article appeared in the Delaware Law Review, Volume 17, Number 2, published by the Delaware State Bar Association.  

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