I dissent.
Every argument advanced by the majority was considered and rejected in Haggerty v. City of Oakland, 161 Cal.App.2d 407 [326 P.2d 957]. That ease, now disapproved by the majority, in my opinion, was and is sound.
The two basic fallacies in the majority opinion are, first, that it necessarily holds that whether or not the rule against perpetuities should or should not apply depends upon the reasonable probabilities as they existed when the lease was executed, or by what developed afterwards, and, secondly, it holds that the rule is outmoded for the needs of modern society and should be strictly limited in its application. Both of these premises are wrong.
The majority opinion talks about the assumed evils of a “rigid mechanistic operation of the rule,” about the “esoteric learning” surrounding it, about the rule only existing in the “dim memories from student days,” about the reluctance of the majority to apply a “rigid application of the rule to the instant facts,” about the rule originating during the “mercantilists period of English history” fitted for the “social order of 1682,” about the “overextension” of the rule during the 19th century to “commercial transactions,” about the inapplicability of the theory of the rule to the needs of “modern society,” and then concludes that since “the rule against perpetuities was born in a society which extolled the tight ownership of inherited real property, it does not faeilely operate as to commercial agreements in today’s dynamic economy.” Then the majority state that they “do not propose to apply the rule in the rigid or remorseless manner characterized by some past decisions,” and that they will “interpret it reasonably, in the light of its objectives and the economic conditions of modern society.” Thus do the majority by a process of “construction,” cavalierly overrule a large body of law, and defeat the public policy of this state set forth in section 715.2 of the Civil Code, adopted not in 1682 but in 1951.1
Leases, unquestionably, fall within the rule requiring *545estates to vest within the prescribed period. (Epstein v. Zahloute, 99 Cal.App.2d 738 [222 P.2d 318]; Dallapi v. Campbell, 45 Cal.App.2d 541 [114 P.2d 646]; cases collected 41 Am.Jur., Perpetuities and Restraints on Alienation, § 34, p. 78. See also Civ. Code, §§ 717 and 718.)
The recognized authorities in this field hold or imply that a lease not to take effect until completion, because of the uncertainty of the completion date, violates the rule. (Simes and Smith, The Law of Future Interests (2d ed. 1956) § 1242, p. 153; Gray, The Rule Against Perpetuities (4th ed. 1942) p. 353; 2 Tiffany, Real Property (3d ed. 1939) § 406, p. 171.)
The majority opinion necessarily stands for the proposition that whether or not the rule applies depends upon the reasonable probabilities. That is not the proper test. As Gray points out: “It is not enough that a contingent event may happen, or even that it will probably happen, within the limits of the Rule against Perpetuities; if it can possibly happen beyond those limits, an interest conditioned on it is too remote.”2 Many cases have established the rule that probabilities have no relevance to the question. The only question presented in such cases is whether there is the barest possibility at the time of the creation of the interest that it might not vest within the required time, and what happens later is totally irrelevant. (Estate of Johnston, 47 Cal.2d 265, 270 [303 P.2d 1]; Estate of Sahlender, supra, 89 Cal.App.2d at p. 348; cases collected 38 Cal.Jur.2d, Perpetuities and Restraints on Alienation, § 29, p. 481.)
The majority opinion disregards these well-settled rules. It necessarily stands for the proposition that whether or not the rule applies depends not on the possibilities as they existed at the time the instrument creating the interest was executed, but on the reasonable probabilities as they then existed. Thus do the majority treat the rule as if it were a rule of construction to be applied to the questioned document in interpreting it. The majority not only disregard but seriously question the rule set forth by Gray that “The Rule against Perpetuities is not a rule of construction, but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore every provision in a will or settlement is to be construed as if the Rule did not exist, and then to the provi*546sion so construed the Rule is to he remorselessly applied.”3 (Italics added.)
The majority have clearly modified the rule as it has heretofore been uniformly construed, by broadly questioning the prior cases that have “remorselessly applied” it, and by broadly hinting that the rule has been outgrown, and should be disregarded except in a limited number of cases, because of the nature of today’s economy. In so doing the court has placed a heavy hand indeed on section 715.2 of the Civil Code. The people in the Constitution, and the Legislature as late as 1951, by the passage of section 715.2, determined the public policy of this state. It might well be asked why, if the Legislature did not want the rule to operate in our present economy, did it reenact the rule in 1951? And why, if the Legislature did not intend that section 715.2 should apply to “on completion” leases, has it not amended that section since 1958 when Haggerty v. City of Oakland, supra, 161 Cal.App.2d 407, was decided? The majority not only disregard the public policy set forth in that section, but they confuse the law in a field where it should be certain, and they encourage litigation to challenge what, until now, was well settled law.
I would reverse the judgment.
That section, after stating the rule, condueles: “It is intended by the enactment of this section to make effective in this State the American common-law rule against perpetuities. ’ ’ This section was added to our code in 1951. (Stats. 1951, ch. 1463, p. 3442, § 2.) This new section reenacted existing law, and carried out the public policy set forth in our state Constitution. (Estate of Sahlender, 89 Cal.App.2d 329 [201 P.2d 69].)
Gray, The Rule Against Perpetuities (4th ed. 1942) pages 207-208.
Gray, The Rule Against Perpetuities (4th ed. 1942) page 599.