It is widely understood that tracing is the process of demonstrating that two rights are linked by an exchange,1 such that a claim to the right given up can be "transmitted" to the right acquired.2 This exercise has attracted the label "exchange-product tracing",3 and its core case is the unauthorised substitution of a trust right: if a trustee swaps the trust right for another in excess of the trustee’s dispositive authority, the beneficiary can trace into the product, and (absent a defence) can claim it.4 Yet, the conceptual ambit of tracing is broader than this central case: if a trustee diverts money from a trust account to that of a third party, it is now well established that the third party receives and may be held accountable for the "traceable proceeds" of the trust account;5 if one or more intermediate accounts are interposed between the delinquent trustee and the payee, the tracing exercise requires proof that a "direct chain of substitutions" connects them.6 This extension is important: almost all instances of tracing involve one or more bank transfers. I argue here that efforts to subsume bank payments within an homogenous law of tracing have been misguided: a bank transfer does not involve a rights-substitution of the kind envisaged by exchange product tracing. Rather, the process that we have called "tracing money" through a bank transfer involves two steps: (i) converting bank money, by artifice, into an asset independent of the underlying account; (ii) following that asset from one location to another. Together, I call these steps "dummy asset tracing". Thus, there are two kinds of tracing: exchange product tracing is the process of linking two rights through an exchange by a single person; dummy asset tracing is the process of pursuing a notional asset (thing or right) from one person to another. In Pt 2 of this article, I describe the orthodox account of exchange-product tracing, and argue that we should treat bank transfers as a case apart from unauthorised substitution. In Pt 3, I explain how we have substantiated the connection between the claimant from whom bank money has been misdirected, and the third party to whom it has been paid. I call this "dummy asset tracing", and I show that it manifests differently in equity and at law: in equity, the claimant follows a notional right into the hands of the defendant; at law, the claimant follows a notional cash thing. I conclude Pt 3 by showing that dummy asset tracing has had important remedial consequences: by pinning liability upon the defendant’s putative receipt of an asset to which the claimant had a prior claim, we have come to replicate the consequences of cash transfers in bank payments cases, thereby increasing the ambit of third party liability. By means of dummy asset tracing, an innocent payee may now be held liable to a claimant with whom they did not transact, and of whom they were wholly unaware.7 In the final part of this article, I argue that existing justificat
{"title":"Dummy Asset Tracing","authors":"Tatiana Cutts","doi":"10.2139/SSRN.3137285","DOIUrl":"https://doi.org/10.2139/SSRN.3137285","url":null,"abstract":"It is widely understood that tracing is the process of demonstrating that two rights are linked by an exchange,1 such that a claim to the right given up can be \"transmitted\" to the right acquired.2 This exercise has attracted the label \"exchange-product tracing\",3 and its core case is the unauthorised substitution of a trust right: if a trustee swaps the trust right for another in excess of the trustee’s dispositive authority, the beneficiary can trace into the product, and (absent a defence) can claim it.4 Yet, the conceptual ambit of tracing is broader than this central case: if a trustee diverts money from a trust account to that of a third party, it is now well established that the third party receives and may be held accountable for the \"traceable proceeds\" of the trust account;5 if one or more intermediate accounts are interposed between the delinquent trustee and the payee, the tracing exercise requires proof that a \"direct chain of substitutions\" connects them.6 This extension is important: almost all instances of tracing involve one or more bank transfers. I argue here that efforts to subsume bank payments within an homogenous law of tracing have been misguided: a bank transfer does not involve a rights-substitution of the kind envisaged by exchange product tracing. Rather, the process that we have called \"tracing money\" through a bank transfer involves two steps: (i) converting bank money, by artifice, into an asset independent of the underlying account; (ii) following that asset from one location to another. Together, I call these steps \"dummy asset tracing\". Thus, there are two kinds of tracing: exchange product tracing is the process of linking two rights through an exchange by a single person; dummy asset tracing is the process of pursuing a notional asset (thing or right) from one person to another. In Pt 2 of this article, I describe the orthodox account of exchange-product tracing, and argue that we should treat bank transfers as a case apart from unauthorised substitution. In Pt 3, I explain how we have substantiated the connection between the claimant from whom bank money has been misdirected, and the third party to whom it has been paid. I call this \"dummy asset tracing\", and I show that it manifests differently in equity and at law: in equity, the claimant follows a notional right into the hands of the defendant; at law, the claimant follows a notional cash thing. I conclude Pt 3 by showing that dummy asset tracing has had important remedial consequences: by pinning liability upon the defendant’s putative receipt of an asset to which the claimant had a prior claim, we have come to replicate the consequences of cash transfers in bank payments cases, thereby increasing the ambit of third party liability. By means of dummy asset tracing, an innocent payee may now be held liable to a claimant with whom they did not transact, and of whom they were wholly unaware.7 In the final part of this article, I argue that existing justificat","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3137285","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41387303","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2018-01-18DOI: 10.3366/EDINBURGH/9780748682096.003.0017
J. Cairns
{"title":"Blackstone, Kahn-Freund, and the Contract of Employment","authors":"J. Cairns","doi":"10.3366/EDINBURGH/9780748682096.003.0017","DOIUrl":"https://doi.org/10.3366/EDINBURGH/9780748682096.003.0017","url":null,"abstract":"","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"104 1","pages":"300-314"},"PeriodicalIF":0.0,"publicationDate":"2018-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47541219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-01-01DOI: 10.1093/oso/9780198852940.003.0009
J. Gardner
Reviews the various legal contexts in which the reasonable person test may be invoked. Argues that the test supplies extra-legal standards from which courts must attempt to construct legal standards, and discusses why this is deemed a useful adjudicative exercise. Suggests that the reasonable person can be thought of as a justified person, and considers the relevance of this insight for feminist critiques of the test.
{"title":"The Many Faces of the Reasonable Person","authors":"J. Gardner","doi":"10.1093/oso/9780198852940.003.0009","DOIUrl":"https://doi.org/10.1093/oso/9780198852940.003.0009","url":null,"abstract":"Reviews the various legal contexts in which the reasonable person test may be invoked. Argues that the test supplies extra-legal standards from which courts must attempt to construct legal standards, and discusses why this is deemed a useful adjudicative exercise. Suggests that the reasonable person can be thought of as a justified person, and considers the relevance of this insight for feminist critiques of the test.","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"131 1","pages":"563-584"},"PeriodicalIF":0.0,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61548599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article addresses the question whether the inclusion of an entire agreement clause in an apparently complete written agreement precludes a finding that, in truth, the parties intended either a partly written and partly oral contract or a written contract and a collateral contract. According to recent decisions of the English courts, the answer is yes. However, the article discusses various reasons why the clause cannot, in principle, be conclusive. It also discusses alternative mechanisms for enforcing an oral undertaking that the evidence establishes was made and was intended to be binding, including the equitable remedy of rectification and, in contrast to English cases supporting the view that the entire agreement clause itself gives rise to a “contractual estoppel”, promissory estoppel and estoppel by convention.
{"title":"The Entire Agreement Clause: Conclusive or a Question of Weight?","authors":"D. McLauchlan","doi":"10.2139/SSRN.2191219","DOIUrl":"https://doi.org/10.2139/SSRN.2191219","url":null,"abstract":"This article addresses the question whether the inclusion of an entire agreement clause in an apparently complete written agreement precludes a finding that, in truth, the parties intended either a partly written and partly oral contract or a written contract and a collateral contract. According to recent decisions of the English courts, the answer is yes. However, the article discusses various reasons why the clause cannot, in principle, be conclusive. It also discusses alternative mechanisms for enforcing an oral undertaking that the evidence establishes was made and was intended to be binding, including the equitable remedy of rectification and, in contrast to English cases supporting the view that the entire agreement clause itself gives rise to a “contractual estoppel”, promissory estoppel and estoppel by convention.","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"128 1","pages":"521-540"},"PeriodicalIF":0.0,"publicationDate":"2012-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2191219","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67977968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that the object of rectification for unilateral mistake ought to be essentially no different than rectification for common mistake - namely, to ensure that the written contract reflects the true bargain between the parties as determined by ordinary principles of contract formation. Proof dishonesty or unconscionable behaviour prior to entry into the contract should not be the basis of the claim. A party who is mistaken as to the terms expressed in a written contract ought to be granted rectification whenever he or she has been led reasonably to believe that the document does in fact contain the terms intended, regardless of whether the other party shares the mistake, knows of it, or behaved badly in some way.
{"title":"The 'Drastic' Remedy of Rectification for Unilateral Mistake","authors":"D. McLauchlan","doi":"10.2139/SSRN.1975575","DOIUrl":"https://doi.org/10.2139/SSRN.1975575","url":null,"abstract":"This article argues that the object of rectification for unilateral mistake ought to be essentially no different than rectification for common mistake - namely, to ensure that the written contract reflects the true bargain between the parties as determined by ordinary principles of contract formation. Proof dishonesty or unconscionable behaviour prior to entry into the contract should not be the basis of the claim. A party who is mistaken as to the terms expressed in a written contract ought to be granted rectification whenever he or she has been led reasonably to believe that the document does in fact contain the terms intended, regardless of whether the other party shares the mistake, knows of it, or behaved badly in some way.","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"124 1","pages":"608-640"},"PeriodicalIF":0.0,"publicationDate":"2011-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67823024","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Four overlapping research agendas form the bulk of current academic legal scholarship in Britain. First, the understanding and internal coherence of legal concepts and legal reasoning, how legal concepts fit together, the consistency of the use of concepts in different areas of law, the extent to which general principles can be extracted from legal reasoning that can be used to predict or guide future legal decision-making. Second, the meaning and validity of law, the examination of what makes law different from, or similar to, other normative systems. Typically, this has involved questions such as: "What is law?" "How far are issues of ethics or morality part of legal reasoning?" "How does a set of normative principles come to be thought of as 'legal'"? "How does law differ from other social institutions and practices?" Third, the ethical and political acceptability of public policy delivered though legal instruments, the consideration of issues such as whether specific legal interventions are acceptable when assessed against external moral, ethical or political principles, or what should be the appropriate legal response where none exists at the moment. Policy prescription is thus often encountered in legal scholarship, sometimes addressed to the courts, sometimes to policy makers in government. Fourth, the effect of law. What effect, if any, does law have on human behaviour, attitudes, and actions? How does it have these effects? Are some institutional mechanisms for delivering legal outcomes more appropriate or effective than others? Each of these four sets of issues can be studied in a purely domestic legal context, such as England and Wales, or at the European level, internationally or comparatively, as a contemporary issue, or historically. Which, if any, of these questions engage a legal academic in "social scientific" research?
{"title":"Legal Research and the Social Sciences","authors":"C. McCrudden","doi":"10.4324/9781315091891-6","DOIUrl":"https://doi.org/10.4324/9781315091891-6","url":null,"abstract":"Four overlapping research agendas form the bulk of current academic legal scholarship in Britain. First, the understanding and internal coherence of legal concepts and legal reasoning, how legal concepts fit together, the consistency of the use of concepts in different areas of law, the extent to which general principles can be extracted from legal reasoning that can be used to predict or guide future legal decision-making. Second, the meaning and validity of law, the examination of what makes law different from, or similar to, other normative systems. Typically, this has involved questions such as: \"What is law?\" \"How far are issues of ethics or morality part of legal reasoning?\" \"How does a set of normative principles come to be thought of as 'legal'\"? \"How does law differ from other social institutions and practices?\" Third, the ethical and political acceptability of public policy delivered though legal instruments, the consideration of issues such as whether specific legal interventions are acceptable when assessed against external moral, ethical or political principles, or what should be the appropriate legal response where none exists at the moment. Policy prescription is thus often encountered in legal scholarship, sometimes addressed to the courts, sometimes to policy makers in government. Fourth, the effect of law. What effect, if any, does law have on human behaviour, attitudes, and actions? How does it have these effects? Are some institutional mechanisms for delivering legal outcomes more appropriate or effective than others? Each of these four sets of issues can be studied in a purely domestic legal context, such as England and Wales, or at the European level, internationally or comparatively, as a contemporary issue, or historically. Which, if any, of these questions engage a legal academic in \"social scientific\" research?","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"122 1","pages":"632-650"},"PeriodicalIF":0.0,"publicationDate":"2006-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628821","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1998-01-01DOI: 10.1093/law/9780198724032.003.0013
M. Furmston
{"title":"Is there a duty to negotiate in good faith","authors":"M. Furmston","doi":"10.1093/law/9780198724032.003.0013","DOIUrl":"https://doi.org/10.1093/law/9780198724032.003.0013","url":null,"abstract":"","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"114 1","pages":"362-363"},"PeriodicalIF":0.0,"publicationDate":"1998-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61409814","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-07-01DOI: 10.1093/acprof:oso/9780199589555.003.0012
J. Keown
{"title":"Restoring moral and intellectual shape to the law after Bland.","authors":"J. Keown","doi":"10.1093/acprof:oso/9780199589555.003.0012","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199589555.003.0012","url":null,"abstract":"","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"20 1","pages":"481-503"},"PeriodicalIF":0.0,"publicationDate":"1997-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90494268","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Restoring moral and intellectual shape to the law after Bland.","authors":"J Keown","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":"113 ","pages":"481-503"},"PeriodicalIF":0.0,"publicationDate":"1997-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22565828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A reversible decision on consent to sterilization.","authors":"S Lee","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83159,"journal":{"name":"The Law quarterly review","volume":" ","pages":"513-5"},"PeriodicalIF":0.0,"publicationDate":"1987-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25248752","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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