perpetuity

perpetuity, literally, an unlimited duration. In law, it refers to a provision that is in breach of the rule against perpetuities. For centuries, Anglo-American law has assumed that social interest requires freedom in the alienation of property. (Alienation is, in law, the transferring of property by voluntary deed and not by inheritance.) When English land conveyancers in the late 16th century invented a form of conveyance designed to make land inalienable forever, the courts held it an invalid human attempt to rival the permanence of God. Thus, they utilized the word perpetuity—from the Latin in perpetuum, a Biblical phrase used when referring to God’s eternal continuance—to describe such an invalid limitation.

The term perpetuity thus became, in law, the antithesis of freedom of alienation. It took little effort to extend the application of the word from present interests of perpetual duration to future interests that would prevent the alienability of the affected property for “too long” a time. The applicability of this regulation to future interests became clear by the end of the 17th century. The next century and a half (1687–1833) were spent by English courts in determining how long was “too long” for the purposes of this rule.

By this masterpiece of judicial legislation, the permissible period for the tying up of property became fixed at the lifetimes of human beings alive when the conveyance was made plus 21 years, plus one or more periods of gestation, to allow for the inclusion of persons conceived but not yet born at any of the times that were important in applying the permissible period. This period corresponded with the English marriage settlement, under which the land would be tied up until the eldest son of the marriage was of full age. The rule invalidated any interest in property, whether real or personal, which, when created, might take longer than this period to vest in the donee; it regarded possible rather than actual events. This became the “common-law rule against perpetuities,” and this rule, with slight modifications, operates in England and in a large percentage of the American states with respect to dispositions of both land and personal property. It serves simultaneously to assure the alienability of property by the end of a not inconveniently long period of time and to set an outer limit on the power of the dead hand to control the future.

In 1830 the New York legislature adopted statutes substantially shortening the permissible period and applying the rule’s regulation not only to future interests but also to the duration of the most common form of private express trusts. This statutory innovation spread to other states, but during the century following there was a general reversal of this trend, and even New York itself returned largely to the common-law permissible period in 1958. Opinion is, however, widespread among jurists of the common-law world that the classical rule against perpetuities needs statutory modification to mitigate its sometimes capricious operation.

The nature and extent of such modification, in the jurisdiction where it has been made, varies considerably. In England, far-reaching alterations were made by the Perpetuities and Accumulations Act 1964. This provided, among other things, that a disposition made after the act that would otherwise be void under the common-law rule would nevertheless be valid if in fact it vested during a statutory “perpetuity period” defined in the act. It thus substituted actual for possible events. It also enabled a settlor or testator to specify a period of years not exceeding 80 as the perpetuity period for that particular deed or will. The Perpetuities and Accumulations Act 2009 extended the prescribed perpetuity period to 125 years. Since the whole rule rests on social policy, exceptions to it based on social policies recognized as superior have gained acceptance, as in perpetual trusts for burial lots, trusts for pension plans, charitable gifts, and some other less frequent types of conveyance.