Return to search

Justifying claims based on unauthorised substitution

This thesis examines the doctrinal justification for the contingency of certain private law claims on tracing in English law. It argues that, contrary to the currently dominant model of tracing as an evidential process, aimed at resolving factual uncertainties, the tracing rules are best understood as normative in function. They strike a balance between preserving the autonomy of the defendant, while preventing her from exploiting the claimant's legally mandated vulnerability to the defendant's decisions to deprive him of rights. The rules distinguish among the different legal capacities of a person acquiring a right, and permit a stranger to the transaction to assert an entitlement to its product only in cases where the product is separable from the person of the defendant and where its acquisition involved the exercise of a legal power to deprive the claimant. On this basis, the thesis argues that claims contingent on tracing are better described as claims based on 'unauthorised substitution'. An unauthorised substitution occurs where A acquires a right in consideration for the valid exercise of a private legal power affecting B, in breach of a duty owed to B. Such an exercise of power can only take place in the context of a prior relationship of 'stewardship of assets', whereby A has a legal power to vary the legal rights of B with respect to some assignable right, owes B a duty in respect of the exercise of that power, and is able to validly exercise the legal power in breach of that duty. These relationships overlap with the categories of 'fiduciary duties' or 'property rights', but share additional and distinctive characteristics that justify the law's particular response to unauthorised substitution.
Date January 2015
CreatorsNair, Aruna
ContributorsSwadling, William
PublisherUniversity of Oxford
Source SetsEthos UK
Detected LanguageEnglish
TypeElectronic Thesis or Dissertation

Page generated in 0.018 seconds