
Contents
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A. Ownership, Value, and Wealth A. Ownership, Value, and Wealth
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B. Contracts, ‘Exchanges of Value’, and ‘Transfers of Value’ B. Contracts, ‘Exchanges of Value’, and ‘Transfers of Value’
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C. The ‘Fund Interest’ Theory of Tracing C. The ‘Fund Interest’ Theory of Tracing
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D. Problems with the Restitutionary Analysis of Tracing: The Unjust Factor, Backwards Tracing, and Subrogation D. Problems with the Restitutionary Analysis of Tracing: The Unjust Factor, Backwards Tracing, and Subrogation
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E. Foskett v McKeown E. Foskett v McKeown
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F. The Extension of the Tracing Rules beyond Trusts, and the ‘Moral’ Basis of the Fund Interest F. The Extension of the Tracing Rules beyond Trusts, and the ‘Moral’ Basis of the Fund Interest
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G. Resulting Trusts G. Resulting Trusts
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11 Value, Property, and Unjust Enrichment: Trusts of Traceable Proceeds
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Published:March 2009
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Abstract
This chapter begins with an analysis of the concept of value, and claims that it is incoherent to say that to own property is to own the value of it, for value is realised by the actions of the owner; it is not something an owner possesses. It therefore follows that value can neither be exchanged or transferred, and any theory which attempts to explain unjust enrichment using the idea of a defective transfer or exchange of value is misconceived. Turning to trusts of traceable proceeds, the chapter proposes and defends a theory of tracing which relies upon treating an interest in a fund as a particular kind of property interest. The consequences of this analysis are then considered, in particular its consequences for our understanding of the nature of the trust obligation, remedies against third parties in cases of breach of trust, and the nature of resulting trusts. Perhaps the most provocative claim is that, on the correct understanding of restitutionary principles, the typical remedy against a innocent volunteer recipient of trust property would be a personal remedy, and not a proprietary one, which not only reverses the traditional received wisdom, but undermines the claims of restitution theorists seeking to justify trusts of traceable proceeds on unjust enrichment reasoning.
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