Tracing Rules Essay Example | Topics and Well Written Essays - 2000 words

Tracing Rules - Essay Example It need not be a proprietary right. Often the tracing exercise begins with a bank account, which is a personal right against a bank.1 And sometimes, the repository of value with which the plaintiff begins is not a right at all, but is rather in the form of services. Services can enhance the value of assets, and in this way the value inherent in the services can be traced into the enhanced asset. It is sometimes said that a prerequisite to tracing in a court of equity is the establishment of a fiduciary relationship.2 If this were true, the consequences would be startling. A trustee sells trust land, and deposits the proceeds into a bank account into which he has earlier deposited some money of his own. A court of equity will allow the beneficiary to trace from the land, previously owned by the claimant in equity, into the balance in the bank account. It will also allow claimant to assert equitable proprietary rights in the bank account; that is a separate issue. On the other hand, a thief steals some money from claimant and pays it into a bank account into which thief has earlier deposited some money of his own. The tracing exercise would appear to be even simpler. But the thief does not owe fiduciary obligations to claimant. If it is true that a fiduciary relation is a prerequisite to tracing in a court of equity, then a court of equity is unable to trace into the bank account in the second situation. This seems absurd. What could possibly be the reason for such a requirement The standard explanation is that it is necessary to found the jurisdiction of equity: Agip ( Africa) Ltd v. Jackson. When a plaintiff wishes to conduct the exercise of tracing, he wishes to establish that the value inherent in his asset has been used to acquire another asset. That alone neither gives nor denies hearing jurisdiction to the Court of Chancery or its successor, a court exercising equitable jurisdiction. If the plaintiff is seeking specific performance or rectification, then t he Court of Chancery would have hearing jurisdiction, and it would allow him to try to prove the making of the contract. If he was merely seeking damages for breach of contract, then the Court of Chancery had no order jurisdiction to grant that remedy and so it would decline hearing jurisdiction.3 The exercise of proving the existence of the contract is neither peculiarly equitable nor peculiarly legal.4 The fact that a plaintiff wishes to trace is not determinative of whether the court has hearing jurisdiction. It is an exercise which is neither peculiarly equitable nor peculiarly legal. Moreover, it is neither peculiarly proprietary nor peculiarly personal; tracing is not a right but an exercise. But equitable rights, properly so called, are different in many ways from common law rights, and so the relief sought by the plaintiff is peculiarly equitable or peculiarly legal. Whether or not there is equitable jurisdiction to hear a claim is determined by the relief which is sought. I f the plaintiff asserts that she holds equitable proprietary rights in some new asset, then that is a claim which only a court of equity can evaluate; and that is the source of the court's hearing jurisdiction. But it makes no sense that a plaintiff should have to establish a fiduciary relationship merely to conduct the exercise of showing that her asset was used to acquire some other asset. When the Court of Appeal expressed its view that a fiduciary