Should the Rule Against Perpetuities Discard Its Vest?

The venerable rule of property known as the rule against perpetuities has recently been subjected to numerous searching and critical analyses, some of which will presently be discussed. Thus far nothing has been published dealing with, and only Professor Simes has touched upon, what seems to the present writer to be the most serious problem engendered by the common law rule in its commonly accepted form, i.e., the notion that the rule is concerned only with remoteness of vesting. It is the purpose of the present discussion to examine the concept of vesting as related to the rule and to attempt to answer the question posed by the title of this article. To accomplish this objective it will be necessary first to advert to the history and purpose of the rule, to consider the application and consequences of violation of the rule in its present form and whether or not it performs a function in modern jurisprudence, and also to review the major criticisms which have thus far been launched against the rule. No attempt will be made to treat statutory substitutes which take the form of prohibitions against the “restraint of the absolute power of alienation”; what follows will be concerned with the common law rule and certain recent modifications of it.