Contents▾
Chapter Purpose
Chapter 11 develops the third of the five substantive elements of trust creation: the requirement that the settlor's manifestation of intent attach to an identifiable, existing, transferable subject-matter — the trust res. UTC §§ 401, 402(a)(3); Restatement (Third) of Trusts §§ 2, 40, 41. Chapter 9 fixed the constitutive act; Chapter 10 fixed the settlor's personal-legal predicate; the present chapter fixes the object without which neither can operate. It states why the res is a validity requirement rather than a mere evidentiary factor; it develops the tripartite doctrinal content of the requirement — identifiability, existence, and transferability; it surveys the categories of property that may serve as res, including real property, tangible personal property, intangible personal property, choses in action, securities and investment assets, closely-held business interests, intellectual property, and digital assets; it distinguishes vested interests capable of serving as res from expectancies which cannot; it treats partial interests, segregation, and identification; it develops the modern treatment of after-acquired property and pour-over funding; and it fixes the doctrinal consequences of failure of the res. Each section states not only what may serve as trust property but why the existence of an identified res is indispensable to the creation of a valid trust.
Principal Research Sources
Master Research Dossier v1.1, §4 (Institutional Analysis — the res as the object of the dual-title structure; identifiability, existence, and transferability as the tripartite content of the requirement; the failure-of-res doctrine and its remedial consequences); §2 (Authority Analysis — tier evaluation of the leading American res cases, including Brainard v. Commissioner (future profits from trading as non-res at the moment of declaration), Speelman v. Pascal (present assignment of the fruits of an existing contract right as valid res), Unthank v. Rippstein (writing promising future payments not effective as declaration of trust for lack of present res), and the historical Ex parte Pye line); §7 (Treatise Analysis — Scott & Ascher §§ 2.1–2.3, Bogert & Hess §§ 111–125, Restatement (Third) §§ 40–41, Loring & Rounds ch. 4); §10 (Authority Matrix — UTC §§ 401 (methods of creation, presupposing a res), 402(a)(3) (property requirement), 103(15) (definition of "property"); Restatement (Third) of Trusts §§ 2 (definition), 40 (property that may be held in trust), 41 (interests that may be held in trust)); §11 (Discrepancy Register — the doctrinal relaxation permitting a settlor to satisfy the res requirement by re-execution of the declaration after property comes into existence; the treatment of after-acquired property under Uniform Testamentary Additions to Trusts Act (UTATA) pour-over statutes; the emerging treatment of digital assets, cryptocurrency, and tokenized rights under the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA); the residual doctrinal question of the trust of an unliquidated cause of action).
Canonical Part Structure Applied
Chapter 11, as a doctrinal chapter within Part Four (Creation), develops a reduced Part set under the Canonical Treatise Architecture: Part I (Foundations, in its doctrinal-institutional aspect — the res as validity requirement); Part II (Legal Nature, at doctrinal depth — the tripartite content of the requirement, and the categories of property that may serve as res); Part III (Creation, at doctrinal depth — expectancies and future property, partial interests, segregation, after-acquired property, and pour-over funding); and Part IX (Defenses, at doctrinal depth — failure of the res). The remaining Parts are omitted rather than fabricated.
- Part IV (Operation) — omitted. Administration of trust property is reserved to Volume II.
- Part V (Transfer) — omitted. Reserved to Volume II.
- Part VI (Rights and Duties) — omitted. Foundational treatment appears in Chapters 7–8 and 22.
- Part VII (Procedure) — omitted. Reserved to Volume II.
- Part VIII (Enforcement) — omitted. Foundational treatment appears in Chapter 8.
- Part X (Related Doctrines) — omitted. Cross-referenced to Chapters 20–21 for remedial consequences.
- Part XI (Practical Application) — omitted. Applied funding practice is reserved to Volume II.
Reader Orientation
A reader completing this chapter should be able to state why the res is a validity requirement rather than a mere evidentiary factor; identify the tripartite doctrinal content of the requirement — identifiability, existence, and transferability; recognize the categories of property that may serve as res, from real property and tangible chattels through choses in action, securities, business interests, intellectual property, and digital assets; distinguish vested interests capable of serving as res from mere expectancies which are not; state the treatment of partial and fractional interests; state the rules governing segregation and identification; state the doctrinal treatment of after-acquired property, including the mechanism by which pour-over funding satisfies the res requirement at death; and state the doctrinal consequences of failure of the res, including the operation of the resulting-trust remedy where a purported trust cannot take effect for want of a subject. Applied funding practice — the mechanics of retitling real estate and securities into trust, the special problems of closely-held-business and partnership interests, the transfer of intellectual property and digital assets, and the interaction of res identification with income-tax and transfer-tax planning — is reserved to Volume II.
The Res as a Validity Requirement
The third of the five substantive elements of trust creation is that the settlor's manifestation attach to identifiable, existing, transferable property — the trust res. UTC § 402(a)(3); Restatement (Third) of Trusts §§ 2, 40. The requirement is a validity requirement rather than a mere evidentiary factor: without a res, there is nothing for the trustee to hold in legal title and nothing for the beneficiary to enjoy in equitable title, and the trust — an institution whose whole doctrinal structure is the bifurcation of title to a thing — has no thing to be bifurcated. The doctrinal reason is stated already in the definitional section of Restatement (Third) § 2: a trust is a fiduciary relationship with respect to property. Where there is no property, there is no relationship of the kind the law calls a trust.
The res requirement coordinates with the four other elements of creation. Intent (Chapter 9) is the constitutive act; capacity (Chapter 10) is the settlor's personal predicate; the res is the object to which the capacitated act must attach; the ascertainable beneficiaries (Chapter 12) are the persons for whose benefit the res is held; and the lawful purpose (Chapter 13) is the design according to which the res is to be applied. The five elements are cumulative. A capacitated settlor's manifestation to hold nothing in trust for a beneficiary is not a defective trust; it is not a trust at all. A gratuitous promise to create a trust of property to be acquired in the future is, at the moment of the promise, not the creation of a trust; it is, at best, an unenforceable donative promise. The res requirement fixes the doctrinal boundary between the trust and the promise to make one.
The Tripartite Content — Identifiability, Existence, Transferability
The res requirement has three doctrinal components, each necessary and none sufficient alone. First, the property must be identifiable — that is, described with sufficient definiteness that the trustee, the beneficiary, and a court of equity can, at the moment of manifestation, determine what property is held in trust. Restatement (Third) of Trusts § 40 cmt. b. The identifiability requirement is doctrinal, not evidentiary: it is not enough that the settlor privately have in mind the property intended; the description must be objectively sufficient to permit external ascertainment. A declaration of trust of "some of my property" fails the requirement; a declaration of trust of "the following described tract of land" or "my 400 shares of General Motors common stock in Certificate No. 1234" satisfies it.
Second, the property must exist at the moment of manifestation. Restatement (Third) § 41; Brainard v. Commissioner, 91 F.2d 880 (7th Cir. 1937). Property that has no present existence — future profits from a business not yet transacted, a chance of inheritance from a living relative, the proceeds of a suit not yet filed — cannot be the res of a trust created at a moment before the property exists, because the manifestation has nothing to attach to. The rule is not a technicality but a corollary of the trust's status as a present relationship with respect to a present thing. Modern American doctrine tempers the rule by two devices: the settlor may re-execute the declaration once the property comes into existence, at which moment the res requirement is satisfied prospectively; and the settlor may create a valid trust of a present right whose fruits are future — a chose in action, a copyright, a contract right to future royalties — because the present right is itself the res. Speelman v. Pascal, 10 N.Y.2d 313 (1961), is the leading American statement of the latter refinement: a present assignment of a percentage of the future proceeds of an existing contract right created a valid trust because the underlying contract right existed at the moment of manifestation.
Third, the property must be transferable. Restatement (Third) § 41. Property that the law forbids from being transferred — a spendthrift beneficiary's interest in another trust, a personal cause of action that dies with the plaintiff, a statutory pension right that is expressly non-assignable — cannot be the res of a new trust, because the settlor cannot invest a trustee with legal title to what the law does not permit to be assigned. Transferability is measured by the substantive law of the property in question, not by the law of trusts: it is the property's own transferability, not the settlor's wish to transfer, that governs. Where a category of property is transferable in some respects and not in others (for example, an interest that may be assigned for security but not by gift), the res inquiry looks to whether the mode of transfer contemplated by the settlor is one the law permits.
Categories of Property That May Serve as Res
Subject to the tripartite content just developed, virtually any species of property, real or personal, tangible or intangible, legal or equitable, may serve as the res of a trust. Restatement (Third) of Trusts § 40 states the rule in its broadest form: any transferable property interest may be held in trust. The doctrinal survey is largely an inventory of the categories, each with its own funding formalities and its own transferability rules.
Real property — fee simple estates, life estates, remainders, easements in gross, and leaseholds — is the historically paradigmatic res, and the trust's medieval origin in the use of land is treated at Chapter 4. Modern funding of a real-property trust requires a deed conveying the settlor's legal title to the trustee, executed with the formalities required for a conveyance of the property in question and, in most jurisdictions, recorded. A declaration of trust by the settlor of the settlor's own real property is also effective without a conveyance, subject to the Statute of Frauds' requirement of a writing signed by the settlor. Chapter 14 develops the funding formalities at doctrinal depth.
Tangible personal property — chattels of every kind, from household goods to works of art to livestock — may serve as res, funded by delivery of possession to the trustee or, in the case of a declaration of trust by the settlor, by the settlor's continued possession as trustee coupled with the declaration. The identifiability requirement is satisfied by any description that permits objective ascertainment; the transferability requirement is satisfied in ordinary chattels almost without exception. Intangible personal property — the vast modern category comprising choses in action, securities, deposit accounts, partnership and limited-liability-company interests, intellectual property, and, latterly, digital assets — is funded according to the transfer formalities appropriate to each subspecies, developed below.
Choses in action — the intangible right to sue for the enforcement of a claim — may serve as res, subject to the transferability of the particular claim. A right to receive payment under a contract, a debt owed to the settlor, and an unliquidated claim for breach of contract are ordinarily assignable and may be trust property. Personal-injury and other purely personal causes of action are, in most American jurisdictions, non-assignable by common law or by statute, and cannot serve as res. Securities and investment assets — corporate stock, bonds, mutual-fund shares, brokerage accounts, and the modern derivatives suite — may serve as res; funding is effected by re-registration of the securities in the trustee's name (for certificated securities and directly registered mutual funds) or by re-titling of the brokerage account (for street-name holdings).
Business interests — partnership interests, limited-liability-company memberships, closely-held corporate shares, and sole-proprietorship assets — may serve as res, subject to two doctrinal frictions. First, the governing organic document (partnership agreement, operating agreement, shareholders' agreement) may impose transfer restrictions that limit or condition the settlor's power to fund the trust; unrestricted transfers may be voidable, or may cause the transferred interest to become an assignee-only economic interest lacking management rights. Second, S-corporation shareholder eligibility rules under Subchapter S of the Internal Revenue Code restrict the classes of trusts that may hold S-corporation stock, a topic reserved to Volume II. Intellectual property — copyrights, patents, trademarks, and trade secrets — may serve as res, funded by an assignment executed with the formalities required by the governing federal or state statute. Digital assets — cryptocurrency, non-fungible tokens, tokenized rights, and access rights to online accounts — may serve as res where they are transferable; the Revised Uniform Fiduciary Access to Digital Assets Act (2015) governs the trustee's access to the digital-asset service provider's system, and modern American practice increasingly treats the underlying digital asset as an ordinary category of intangible personal property for res purposes.
Expectancies and Future Interests
The res requirement's existence component distinguishes vested interests, which are present property and may serve as res, from mere expectancies, which are not property at all and cannot. Restatement (Third) of Trusts § 41 cmt. a. An expectancy is a hope of receiving property in the future contingent upon the will or conduct of another — most classically, the hope of an heir apparent to inherit from a living relative. Because the living relative may sell, spend, or devise the property freely, and may make a new will at any moment, the heir apparent has no present interest; the interest, if it arises at all, arises only at the moment of death. An attempted trust of the expectancy is not a trust because there is no res; it is, at best, a contract to convey the property when and if received, enforceable, if at all, on ordinary contract principles.
Vested future interests — remainders and executory interests in property already conveyed, contract rights to future payments, present interests in trusts of which the settlor is beneficiary — are property already in being and may serve as res, notwithstanding that the enjoyment is deferred to a future moment. The line between an expectancy and a vested future interest is a substantive property-law question and not a res-law question: the res inquiry accepts the property-law characterization and asks only whether the interest, so characterized, is present or merely hoped for. Speelman v. Pascal exemplifies the rule: the assignor held a present contract right to a percentage of the future proceeds of a Broadway production; the right was in being at the moment of assignment; the trust of the right was accordingly valid. Brainard v. Commissioner exemplifies the converse: the settlor's declaration of trust of future stock-trading profits, made before the trades were executed, fixed on nothing in existence at the moment of manifestation; the res requirement was not satisfied until the settlor confirmed the declaration after the profits were realized, and no trust arose in the interval.
Unthank v. Rippstein, 386 S.W.2d 134 (Tex. 1964), states the negative side of the doctrine in the declaration-of-trust context. A written promise by the deceased to make future monthly payments to the plaintiff, coupled with the statement that the promise bound his estate, was not effective as a declaration of trust because at the moment of the writing the promisor had not segregated or identified any present property as the res of the trust. The instrument functioned, if at all, as a gratuitous promise; the res requirement barred its operation as a trust. The case is a standing American reminder that the language of trust — "I hold in trust," "I bind my estate" — is not sufficient to create a trust where the manifestation does not attach to a present, identified res.
Partial Interests, Segregation, and Identification
A partial interest in property — an undivided fractional share of a chattel, a specified percentage of the shares of a corporation, a life estate or remainder in a fee — may serve as res. Restatement (Third) of Trusts § 41 cmt. b. The identifiability requirement is satisfied where the partial interest is described with sufficient definiteness that the trustee's share is ascertainable, whether by fraction (one-half of the following described securities), by specific identification (Certificate No. 1234 for 100 shares), or by any other objectively determinate designation. Where the settlor purports to declare a trust of "part" of a fungible mass without specifying the part, the declaration fails the identifiability requirement; where the settlor specifies the fraction or the number of units and treats the trust portion as fungible with the retained portion for administrative purposes, the declaration is ordinarily sufficient.
Segregation is not, as a matter of black-letter doctrine, a separate element of the res requirement, but it is a common evidentiary and administrative predicate of identifiability. Where the settlor declares a trust of property that remains commingled with the settlor's own property indistinguishably — cash in a joint account, fungible commodities in a common bin — the identifiability requirement is at risk unless the trust portion can be objectively ascertained by fraction, by first-in-first-out, or by some other doctrinally recognized rule of tracing. The tracing doctrines developed at Chapter 21 in the constructive-trust context, and at operational depth in Volume II, are the relevant tools; but the res inquiry itself asks only whether, at the moment of manifestation, the trust portion is objectively identifiable. Modern American practice accordingly counsels segregation of trust property in a separately titled account or in a separately described mass, both to satisfy the res requirement at creation and to avoid tracing disputes in administration.
After-Acquired Property and Pour-Over Funding
The existence component of the res requirement bars the creation of a trust of property not yet in being at the moment of manifestation, but modern American doctrine has developed two devices by which after-acquired property may nonetheless be brought within a validly created trust. The first is the settlor's continuing power, in a revocable trust, to add property to the trust after its creation. Where the trust is validly created with some existing res — even a nominal one, such as a dollar bill delivered to the trustee at execution — subsequent transfers of after-acquired property to the trustee become subject to the trust's dispositive terms on transfer, not on the trust's original creation; the res requirement is satisfied as to the original res at creation and as to each subsequent addition at transfer. The nominal-res convention is doctrinally lawful under Restatement (Third) § 40 cmt. a and is a settled feature of modern American drafting.
The second device is the pour-over will, coordinated with the Uniform Testamentary Additions to Trusts Act (UTATA). A testator may execute a pour-over will that devises property to the trustee of an inter vivos trust — often the testator's own revocable trust — to be held under the terms of that trust as they exist at the testator's death. UTATA validates the pour-over notwithstanding that the trust holds nothing at the moment of the will's execution and notwithstanding that the trust's terms may be amended between the will's execution and the testator's death. The trust need not be funded during the settlor's lifetime; it is enough that the trust be validly created as an instrument, with all elements save the res satisfied at creation, and that the pour-over supply the res at death. The doctrinal effect is that the res requirement is satisfied as to the pour-over property at the moment of the testator's death, when the will operates and the property vests in the trustee; the trust does not spring into existence retroactively but takes effect prospectively as to each dollar that pours over. Chapter 17 develops the doctrinal architecture of the unfunded revocable trust and its coordination with the pour-over will.
The Restatement (Third) and Uniform Trust Code Treatment
The modern American authorities converge on the res requirement in substance while differing in vocabulary. UTC § 402(a)(3) states the requirement in the affirmative — a trust is created only if "the trustee has duties to perform," a formulation which presupposes that the trustee holds some property with respect to which duties can be performed. UTC § 103(15) defines "property" broadly to include "anything that may be the subject of ownership, whether real or personal, legal or equitable, or any interest therein." The Comments to UTC § 402 clarify that the property requirement is not satisfied by an expectancy and is satisfied by any transferable interest, including a partial or future interest that presently exists. Restatement (Third) of Trusts § 2 states the requirement definitionally, and §§ 40–41 develop it: § 40 identifies the categories of property that may be held in trust; § 41 identifies the interests in those categories, including partial, future, and equitable interests, that qualify. The Restatement and the UTC treat the res requirement in substantially identical terms, and modern American jurisdictions, whether or not they have enacted the UTC, apply the same substantive rule.
The doctrinal convergence is best appreciated against the historical background developed in Chapters 4–5. The medieval use took land as its paradigmatic subject-matter; the equity of the Chancery, in Ex parte Pye and its successors, extended the trust to chattels and choses in action; the American reception and the Restatements broadened the category to include every transferable interest; and the modern American authorities, culminating in the Restatement (Third) and the UTC, have completed the generalization. What remains constant across the centuries is the underlying doctrinal insistence: whatever the category of property, the trust attaches to an identified, existing, transferable thing, and without such a thing there is no trust.
Failure of the Res
Where the res requirement fails, the doctrinal consequence is that no trust of the kind claimed ever validly existed. Restatement (Third) of Trusts § 41 cmt. c. Three distinct failure patterns bear notice. First, the manifestation may fail to attach to any identifiable res at the moment of manifestation — the Unthank v. Rippstein pattern. In this case, the manifestation is not a defective trust but no trust at all; whether it operates on any other legal theory (contract, testamentary devise, gift causa mortis) is a question for the ordinary law of those institutions. Second, the property described as res may exist but be non-transferable — a personal cause of action, a spendthrift interest — in which case the manifestation fails as a trust because the settlor cannot invest the trustee with legal title. Third, the res may exist and be transferable at manifestation but be lost, destroyed, or extinguished thereafter — as by consumption of a chattel, extinguishment of a debt by payment or by limitation, or termination of a contract right by performance or by breach. In this third case, the trust was validly created and its subsequent extinguishment is administered under the ordinary rules of trust termination developed at operational depth in Volume II.
The remedial consequence of failure of the res tracks the pattern of failure. Where the manifestation never attached to any res, the purported settlor's property is not affected: legal title never left, no equitable interest was ever created, and the manifestation is a nullity. Where property was transferred to the purported trustee in aid of a manifestation that fails for want of a res — as where the settlor delivers securities to the trustee with instructions to hold "in trust for a purpose to be later designated" — the transferee holds the property on a resulting trust for the transferor, and must return it. Chapter 20 develops the resulting-trust doctrine at doctrinal depth. Where the transferee's retention of the property in the absence of a valid trust would be inequitable — as where the transferee procured the transfer by fraud, or converted the property to the transferee's own use — the constructive-trust remedy of Chapter 21 supplies the requisite equitable relief. The failure-of-res doctrine is thus a doorway to the remedial trusts, and its treatment here is coordinated with the treatment there.
The Res as the Object of the Dual-Title Structure
The res requirement is finally a doctrinal expression of the dual-title structure developed at Chapter 7. Legal and equitable title are titles to something; without an identifiable something, there is no title of either kind to be held. The trustee's legal-title duties — to preserve, to invest, to account for the trust property — presuppose an identified property to preserve, invest, and account for; the beneficiary's equitable-title rights — to receive distributions, to enforce the terms, to trace the property in wrongful hands — presuppose an identified property to be distributed, applied, and traced. The res is not one element of the trust among several coordinate elements; it is the object of the trust's central structural feature, and every operational doctrine of Volume II presupposes an identified res on which to operate.
The point bears emphasis because modern American practice increasingly encounters manifestations that push against the res requirement — declarations concerning cryptocurrency held in accounts whose ownership is technically the exchange's, tokens whose transferability is conditioned by blockchain-embedded restrictions, and intellectual-property portfolios whose future licensing revenues are the practical target of the settlement while the underlying rights remain with the settlor. In each such setting, the doctrinal question is the same as in Speelman v. Pascal and in Brainard v. Commissioner: does the manifestation attach to a present, identifiable, transferable right, or does it attach only to the hope of a future right that does not yet exist? The vocabulary of the technology is new; the underlying res doctrine is not.
The Res Requirement in Summary
The res requirement is the third of the five substantive elements of trust creation: the settlor's manifestation must attach to identifiable, existing, transferable property. The requirement has three doctrinal components; is satisfied by virtually every category of transferable property, from real estate through digital assets; is not satisfied by mere expectancies, but is satisfied by presently existing interests notwithstanding deferred enjoyment; admits after-acquired property through revocable-trust addition and pour-over funding; and generates, on failure, the resulting- and constructive-trust remedies of Chapters 20–21. With intent (Chapter 9), capacity (Chapter 10), and the res now fixed, the remaining creation elements are the ascertainable beneficiaries (Chapter 12) and the lawful trust purpose (Chapter 13), taken up in turn.
Key Principles
The res is a validity requirement: without an identifiable trust property, there is no trust. UTC § 402(a)(3); Restatement (Third) of Trusts §§ 2, 40.
The requirement has three doctrinal components — identifiability, existence, and transferability — each necessary and none sufficient alone.
Any transferable property interest may serve as res: real property, tangible chattels, choses in action, securities, business interests, intellectual property, and digital assets alike. Restatement (Third) § 40.
Vested future interests may serve as res; mere expectancies may not. Speelman v. Pascal; Brainard v. Commissioner; Unthank v. Rippstein.
Partial and fractional interests may serve as res where objectively identifiable; segregation is not a separate element but a common predicate of identifiability.
After-acquired property may be brought within an existing trust by transfer to the trustee (revocable-trust addition) or by pour-over will under UTATA; the res requirement is satisfied prospectively at transfer, not retroactively.
Failure of the res produces one of three outcomes: no trust ever arose (manifestation attached to nothing); resulting trust for the transferor (property transferred in aid of a failed trust); or constructive trust where equity requires it. Chapters 20–21.
The res is the object of the trust's dual-title structure; every legal-title duty and every equitable-title right presupposes an identified res on which to operate.
Cross-References
Backward, within Volume I.
- Chapter 7 §§7.01–7.05 → §§11.01, 11.09 (dual-title structure; res as object)
- Chapter 9 §§9.01, 9.05 → §§11.01, 11.04 (manifestation of intent; declaration of trust of present property)
- Chapter 10 §10.01 → §11.01 (five elements of creation; res as third element)
Forward, within Volume I.
- §11.01 → Chapter 12 (ascertainable beneficiaries; the beneficial-interest correlate of the res)
- §11.03 → Chapter 14 (funding formalities for inter vivos trusts)
- §11.06 → Chapter 17 (unfunded revocable trusts and pour-over funding)
- §11.08 → Chapters 20–21 (resulting and constructive trusts as remedial consequences)
Forward, to Volume II. Applied funding practice — retitling of real estate and securities, funding of closely-held-business and partnership interests, assignment of intellectual-property portfolios, transfer of digital assets under RUFADAA, and the interaction of res identification with income-tax and transfer-tax planning — is reserved to Volume II. Volume II presupposes the res framework fixed here.
Transition to Chapter 12
Chapter 11 has fixed the third element of trust creation: the requirement that the manifestation attach to identifiable, existing, transferable property — the res. Chapter 12 takes up the fourth element: the ascertainable beneficiaries. Where the res is the object of the trustee's legal title, the ascertainable beneficiaries are the persons for whose benefit that title is held — the holders of the equitable interest that the trust exists to enforce. Chapters 11 and 12 are, in this sense, the two poles of the dual-title structure fixed at Chapter 7: property on one side, beneficial owners on the other, held together by the trustee's fiduciary office.
Primary sources
- Uniform Trust Code (2000, as amended)
- Restatement (Third) of Trusts (2003–2012)
- Uniform Testamentary Additions to Trusts Act (1990, as amended)