Words & Stuff

I was really confused about a legal clause that I read about in the news. I eventually figured it out, but I thought it was worth writing up my confusion.

Recently, Disney set up a legal agreement that’s intended to last in perpetuity; or, if that turns out to violate the Rule Against Perpetuities, then it lasts until “twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration.” (The full text of the agreement is embedded in that article as a Scribd document.)

I initially interpreted that clause as meaning that the agreement would last until some indefinite date hundreds or thousands or millions of years from now, when some hypothetical last descendant of Charles III dies—essentially “when the current royal family dies out.” (Plus 21 years.) Which seemed to me to be effectively the same as “in perpetuity,” with the added complication of future people having to keep track of Charles’s descendants. The idea of that being the term of the agreement seemed weirdly implausible to me, but I didn’t see what else it could mean. So I went looking for more info.

Unfortunately, the Wikipedia article about royal lives clauses didn’t clarify things for me. (I’ve now updated that article, so this link is to the version before my changes.)

But then I looked at the Wikipedia article about the Rule Against Perpetuities, which says that you can’t use “legal instruments […] to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written.”

So I gradually figured out that I had misinterpreted the phrasing of the royal lives clause in both the Disney agreement and the Wikipedia article about that clause. It turns out that that clause really means: “of the currently living descendants of King Charles III, whichever of them dies last, take the year of that one’s death plus 21 years.”

So I was interpreting “death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration” as meaning “death of the last survivor of the descendants of King Charles III; oh, and by the way, Charles is the King of England who is currently living”; but it really meant “looking at the group of descendants who are currently living, take the last survivor of that group.”

Similarly, the Wikipedia article’s introduction said “the last living descendant of a monarch who happens to be alive at the time”; here again I interpreted the “who” clause as referring to the monarch, not to the descendant.

Wikipedia’s sample of a royal lives clause was more clearly phrased:

The option must be exercised before the end of the period ending at the expiry of 21 years from the death of the last survivor of all the lineal descendants of [his late Majesty King George V or some other British monarch] who have been born on the date of this agreement.

But the bracketed aside puts the important “who” clause relatively far away from who it refers to, which still led me to misunderstand it, mostly because the intro had primed me to misunderstand it. (The word have, instead of has, should have been a clue, but I didn’t realize that at first.)

Anyway, eventually I figured out that when a royal lives clause says something like “who is currently living,” that phrase refers to the descendants, not to the monarch. In other words, the clause is referring to the descendants who are currently alive at the time, not to all future descendants. And I edited the Wikipedia entry to try to make that clearer, though I don’t love the phrasing that I ended up with.

But I’m amused that the phrasing of this legal clause could be so easily misinterpreted (at least by me) to mean something very different from what it was intended to mean.

(I’m sure that lawyers and judges are perfectly aware of what it’s intended to mean, and thus that the question of what it means doesn’t come up in court. But I was unfamiliar with the context/background, and it would never have occurred to me to interpret the Disney clause in the way it was intended.)