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Title: The role of tracing in claiming
Author: Cutts, Tatiana
ISNI:       0000 0004 5359 1641
Awarding Body: University of Oxford
Current Institution: University of Oxford
Date of Award: 2015
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The central tenet of tracing theory is that in certain circumstances it is possible to show that one asset stands in the place of another, such that any claims in relation to the original asset can be transmitted to its substitute. Since at least 2001 academic and judicial orthodoxy has been that this is done by following the path of value from one asset to the other, and can be aided in more complex cases by the application of evidential rules or presumptions. These ideas are at the heart of existing accounts of proprietary claims against trustees who deal with trust assets without authority, and personal and proprietary claims against strangers to the trust. They are also at the heart of calls to 'unify' the rules of tracing at law and in equity, removing existing distinctions drawn between claimants who are owed fiduciary duties and those who are not. In this thesis it is argued that there are no independent processes of following and identifying value, and that the language of 'tracing value' has lent the appearance of neutrality and conceptual unity to disparate heads of fiduciary and non-fiduciary liability. Most importantly, it has led to the assumption that in any case in which a claimant can demonstrate that a series of transactions links some right in the defendant’s hands with a right previously held by or for the claimant, the claimant can claim that right. In this thesis it is argued that far from creating an arbitrary practical obstacle for claimants seeking to trace and locate value, the fiduciary relationship is at the heart of the justification for any claim that exists to a new right in the hands of someone else.
Supervisor: Stevens, Robert Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available
Keywords: Property law ; Contract,restitution,tort ; Equity and the law of trusts ; Tracing ; Value ; Property ; Restitution ; Equity ; Debt