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P A P E R T R A N S F E R S

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applied to sales transactions. When securities are transferred by means of paper documents, the constructive trust arises when the transfer form and the certificate are delivered to the buyer or his agent. The analysis is consistent with the path adopted by English law. A constructive trust arises, the seller becomes a trustee, the buyer becomes the beneficiary and in that capacity enjoys equitable ownership.

2.4.7 Express trusts

A trust also arises in English law as a result of an express declaration. Parties who wish to regulate the transfer of property rights in the context of a sale can do so by providing for the emergence of a trust for the benefit of the buyer at some point in time prior to registration of the transfer with the issuer. It will be shown in section 3.1 that the transfer systems set up by the stock exchange have taken advantage of this technique to give the buyer proprietary rights.

The express application of the English law of trusts in this context is, once again, evidence of the path-dependent development of English law. When documenting transactions, parties and their legal advisors prefer to adopt solutions that provide for certain results. This can be best achieved by applying legal techniques that are widely used and have been tested in the courts. Rather than, for example, attempting to bring the forward point in time at which the buyer acquires legal title by a provision to that effect in the sales contract, parties prefer to use trust law to achieve a similar result. As a result, English law continues to regulate property rights in securities through the mechanism of trust law.

2.4.8 Conclusions

The discussion in subsection 2.4.4 was concerned with the circumstances in which a constructive trust arises by virtue of the sales contract becoming enforceable by an order for specific performance. The conclusion was that for transactions concerning listed securities an order for specific performance will be available only in exceptional circumstances. In subsection 2.4.5 the question if equitable title can arise if specific performance is not available was analysed. Here it was concluded was that a conditional equitable interest arises as soon as the subject matter of the contract has become certain. The interest is conditional upon payment of the consideration. As soon as the consideration has been paid, the buyer acquires an unconditional equitable