In this article, I challenge some a central orthodoxy of tracing, namely that it is merely a process and independent of the underlying claim.
Keywords: Fiduciary duty; Jurisprudence; Real property; Tracing
Abstract: Tracing is said to be merely a process and separate from claiming. It is then characterised as a set of pure property identification rules which cannot vary from claim to claim. However, the development of tracing in equity relied heavily on the fiduciary obligation to support its rules. While many of tracing’s rules can be justified independently of the fiduciary obligation or rationalised as evidential presumptions, others cannot. This means it is impossible to detach the process from the claim. Furthermore, it would be undesirable to do so because it would reduce the flexibility of tracing.
Citation: Derek Whayman, ‘Obligation and Property in Tracing Claims’  Conv 157
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