The law of property task--tracing Essay Example | Topics and Well Written Essays - 2500 words

The law of billet task-- tincture - Essay ExampleWhat this means is that, in equity, the remedy of tracing awards a proprietary right in the blank space to the beneficiary, so that he may be minded(p) priority in recovering it in case the defendant goes deflower, provided his property still exists and is distinguishable from the coastrupt individuals other assets. This proprietary nature of the right was affirmed in Foskett v McKeown (2000). vestige at law is much more restrictive as compared to tracing in equity as the beneficiary is not completelyowed to claim title to any(prenominal) additions in the value of the property that it may go acquired since the breach of trust and recovering the property may be close to impossible if it was mixed with another. In equity, tracing can lead to the property even if it is mixed and recover it for the wronged beneficiary, which allots great power in the hands of those who have been deprived. Moreover, the differences between tracing at law and equity are considered by several(prenominal) commentators as separate remedies altogether instead of limbs of the same principle. It is imperative to consider both regimes, and my discussion would mull both the common law remedy and the remedy in equity. Tracing at Law At common law, any individual with a legal title in property may be able to resort to tracing in order to recover it. Thus, this legal title, may be traced all the way to the newest form the property has taken after exchanging hands (for e.g where a defendant has bought a note with the original property, cash). This phenomenon was described as a matter of hardnosed property rights and distinguished from an action in damages2, hence, any diagnosable property was considered traceable and returned to the original beneficiary. Thus, the legal title is traced from one person to all back-to-back individuals that came along the way until finally reaching the person against whom the action could blend, provid ing a means to the remedy (Trustee of the property of FC Jones v Jones 1996). In this way, it is regarded by the courts not as a remedy unto itself but as a means to a remedy, as seen in Banque Belge pour LEtranger v. Hambrouck 19213. The first step then to a in(predicate) tracing action is to identify the defendant who is now in possession of the property. In the above case, where bills was being traced, the defendant was identified as the fraudulent cashier who had deposited the money in a bank and used it to pay for his expenses. It was held that the cash even though it had the potential of being mixed with other funds, was identifiable in the account and could be recovered by Banque Belge. Once the defendant is identified, the next step is to proceed with a remedy which could be one of the following depending on the form of property being traced. If the property in question, as in the above case of Hambrouck, pertains to funds, then an action to recover money had and legitima te may be brought (Lipkin Gorman v Karpnale 1991)4. In Karpnale, a compulsive gambler come partner of a law firm was eventually caught drawing money for gambling purposes from the company account. The money was traced to the gambling edict which had exchanged it with chips. The House of Lords found that the money, although received in good faith, was recoverable by the solicitors from the gambling parliamentary procedure which was presently in possession of it. There was also a failure of consideration observed at the hands of the gambling club