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Claims to Traceable ProceedsLaw, Equity, and the Control of Assets$
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Aruna Nair

Print publication date: 2018

Print ISBN-13: 9780198813408

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198813408.001.0001

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The Principles of Tracing

The Principles of Tracing

Chapter:
(p.83) 3 The Principles of Tracing
Source:
Claims to Traceable Proceeds
Author(s):

Aruna Nair

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198813408.003.0003

This chapter analyses the figurative language that the judges have traditionally employed to describe tracing with the aim of identifying the principled basis of the law of tracing, focusing especially on the various uses of the maxim ‘money has no earmark’. It argues that the possibilities and constraints of transactional tracing are underpinned by a judicial commitment to two key principles. The first, the principle of subordination of wrongdoers, entitles a claimant to disregard the defendant's intentions and to treat him as having acted for her benefit in situations where his decisions involved the exploitative exercise of powers to deal with her assets. The second, the principle of respect for defendant autonomy, insists that the defendant's intentions must be taken seriously in situations where his transactions involve the exercise of rights held for his own benefit or for the benefit of persons other than the claimant.

Keywords:   Tracing, Money, Ratification, Unauthorised Substitutions, Undisclosed Principals, Conversion

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