Cutts, Tatiana
(2016)
Tracing, value and transactions.
Modern Law Review, 79 (3).
381 - 405.
ISSN 0026-7961
Abstract
Tracing is generally understood to be the process of following value through one or more substitutions, by which a claimant ‘transmits’ his claim from the right substituted into its exchange product. Understood thus, the exercise of tracing has been made increasingly difficult to conduct and predict by the development of complex payment mechanisms involving multiple payment instructions and interceding periods of indebtedness. This article argues that concepts of value are conceptually and practically misleading. Identifying and determining the content of transactions are normative processes that depend, not upon identifying the precise mechanisms by which a particular change in legal relations is sought and executed, but rather upon the manifested intentions of the transacting parties. This allows us to deal straightforwardly with complex payment structures, clearing and credit, and to focus instead upon the role of transactions in the justification for a resulting claim.
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