Technical Aspects
The law of tracing is enormously complex, even to practitioners. Characteristically, tracing claims tend to involve fraud, and as a result most claims (and case law) are against the background of a complex factual matrix. However, the law itself is also complex, and a number of key aspects of the law remain ambiguous in many countries.
- Equitable tracing requires a fiduciary relationship, while common law tracing does not. However, this relationship does not need to have existed before the misappropriation took place. However, this difference between common law and equity has been criticized by Lord Millett and Lord Steyn in Foskett v McKeown, though they stopped short of deciding that the traditional precondition to equitable tracing should be overruled.
- The wrongdoer may mix the misappropriated funds with his own money, and then purchase an asset with the mixed fund.
- Where there are multiple innocent claimants.
- Where there is mixing of the funds by an innocent volunteer.
Read more about this topic: Tracing (law)
Famous quotes containing the words technical and/or aspects:
“I rather think the cinema will die. Look at the energy being exerted to revive it—yesterday it was color, today three dimensions. I don’t give it forty years more. Witness the decline of conversation. Only the Irish have remained incomparable conversationalists, maybe because technical progress has passed them by.”
—Orson Welles (1915–1984)
“All the aspects of this desert are beautiful, whether you behold it in fair weather or foul, or when the sun is just breaking out after a storm, and shining on its moist surface in the distance, it is so white, and pure, and level, and each slight inequality and track is so distinctly revealed; and when your eyes slide off this, they fall on the ocean.”
—Henry David Thoreau (1817–1862)