Browse by author
Lookup NU author(s): Dr Derek WhaymanORCiD
Full text for this publication is not currently held within this repository. Alternative links are provided below where available.
Tracing is said to be merely a process and separate from claiming. If so, it is a set of pure property identification rules, which cannot vary from claim to claim. This characterisation is shown to be ahistoric through analysis of its leading cases in the period 1800–1950, which rely on obligational justifications. It is shown to be false per se given the recent decisions accepting backwards tracing and the modification of the bona fide purchaser defence such that it does not survive rescission of the transferring transaction. These rules are justified through the obligational aspect of the claims. Given there is no longer a judicial commitment to formal theory, it is argued a contextual approach to tracing is developing. The rules of tracing may change accordingly. This paper considers: the adoption of a change of position defence; the presumptions against mixing wrongdoers; the lowest intermediate balance rule; and whether access to increases in value through mixed substitution tracing will be restricted.
Author(s): Whayman D
Publication type: Conference Proceedings (inc. Abstract)
Publication status: Unpublished
Conference Name: Modern Studies in Property Law Workship 2017
Year of Conference: 2017
