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Equitable tracing - overdrawn accounts and backward tracing

Equitable tracing - overdrawn accounts and backward tracing

Pawlowski, Mark ORCID: 0000-0002-5473-5809 (2017) Equitable tracing - overdrawn accounts and backward tracing. Trusts and Estates Law & Tax Journal (188). pp. 12-15. ISSN 1743-5501

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This article explores the possibility of extending the equitable remedy of tracing into property acquired before the trust money was received by the mechanism of so-called backward tracing. This would allow tracing if the property had been acquired with borrowed money (i.e., by loan or overdraft) provided that, when the borrowing was incurred, the intention was that it should be repaid with trust money. The notion of backward tracing, however, has not met with universal support in the English cases and remains controversial. Ultimately, the question of whether English law should recognise backward tracing resolves itself into a policy decision. The article argues for a balanced approach between the interests of claimants and unsecured creditors by reference to the transaction as a whole. This is in line with the recent Privy Council decision in Federal Republic of Brazil v Durant International Corporation [2015] UKPC 35.

Item Type: Article
Uncontrolled Keywords: Equitable tracing, Overdrawn accounts, Subrogation, Backward tracing, Lowest intermediate balance, Close and transactional link
Subjects: K Law > KD England and Wales
Faculty / School / Research Centre / Research Group: Faculty of Liberal Arts & Sciences
Faculty of Liberal Arts & Sciences > School of Law & Criminology (LAC)
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Last Modified: 10 Jun 2019 15:52

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