Right of tracking

The right to trace the property (also abbreviated to “following” / “tracing”) is the right to (1) pursue assets, and possibly also the profit gained from them, and (2) determine their whereabouts. According to Rs Foskett v McKeown , “Following” is understood to mean the tracking of the same assets and “Tracing” is the identification of new assets that have been created or completely or partially replaced (substituted) by the old one.

Through the right to trace z. B. the trust assets ( property ) of a trust are reclaimed by the beneficiaries from the hands of unauthorized ( bad faith) third parties or the trustee (see also vindication ).

In principle, it is not the task of the right to trace assets to reverse a shift in assets, but only to make the bad faith or incorrect shift of assets understandable and to enable the courts to make a decision on this. The right to trace the property is fundamentally lost if the property can no longer be found or has perished (destroyed) without replacement ( please note, for example, the case of Lipkin Gorman v Karpnale ).

Word meaning

In connection with the tracking of the first word is part track (Engl. Trace ) "impression". In the sense of criminology , the "trace" means objects or clues that can provide evidence for an act (see also: trace in criminology ). The second part of the word “follow” is to be understood in the sense of “follow up”. Thus, the track following is to be understood in the sense of following a clearly recognizable trail ( track ) (see also, “Getting on the trail of someone”, “following the trail of a thief”, “ tracking the thief”).

“Tracking is the tracing of a thief in the elder right. In Franconian law, tracking is only permitted within a period of 3 nights. The lane following allows, if the lead leads into a house, its search. "

Lane following or lane following law is used in today's German-speaking jurisprudence largely in connection with fiduciary relationships (trust).

Right of trace in the Middle Ages

In the Middle Ages , the right to trace the trace had to be taken up immediately - in contrast to the Anefangklage - and the traces of the theft ( Mittellat . : vestigium minare or vestigium sequi ; Anglo-Saxon .: Trod bedrífan ) had to be traced and the thief caught if possible. The beginning of the persecution was the call ( rumors in the sense of calling , nagging ) to the neighbors to support the stolen person in the persecution. The neighbor had to obey this request in the event of other punishment, and the tracking was started together. The hindrance of those looking for the stolen property ( vestigio ducente ) in the course of tracking was again punished, and the seekers were also entitled to search the premises according to precise rules in previously specified objects. Subsequently (around the time of the Merovingians ) in Franconian law tracking was replaced by an official organization and the liability of certain areas for the thefts that occurred therein.

The right to track tracking was limited in time, often to three days and also as long as a track could be identified. If the stolen property could not be obtained within the set deadline (e.g. three days) through tracking or if no tracking was carried out at all, an initial charge had to be brought if the stolen property was found on another person.

Right of trace in Liechtenstein law

According to the provisions of Art. 912. Para. 3 PGR, a third party can in good faith acquire ownership of items of the trust property and also claims, even if the trustee was not entitled to dispose of them according to the trust deed ( trust deed ). In such cases, a right of trace in advance is unsuccessful.

According to the legal view of the Liechtenstein Supreme Court , the Liechtenstein foundation that has been damaged by its board of trustees in tort and / or in breach of trust does not have the right to trace the third party acquirer. The in (Art. 932a PGR) § 30 Abs. 1 and 2 TrUG i. V. m. Art. 552, Paragraph 4 of the PGR referred to as the right to trace the trace does not apply to foundations by analogy .

Web links

literature

Johannes Hoops (founder): Real Lexicon of Germanic antiquity . 2nd Edition. tape 14 . de Gruyter Verlag, p. 76 .
Franz Wieacker : in “Endoplorare” in the “Festschrift für Leopold Wenger” . 1st edition. Beck Verlag, Munich 1945.
Karl Rauch: Track Following and Beginning in Their Interrelationships. A contribution to the history of the German driving process . 1st edition. Publishing house Böhlau, Weimar 1908.
Antonius Opilio : Working Commentary on Liechtenstein Property Law . 1st edition. tape 1 . Edition Europa Verlag, Dornbirn 2009, ISBN 978-3-901924-23-1 , Art 20 ( books.google.at ).

Individual evidence

↑ Also: "Right to follow the Trust Property".
↑ However, the terminology is not used uniformly. For the problem of “tracing”, see basically z. B. Rs. Hallett's Estate, Oatway , Barlow Clowes International Ltd v Vaughan , Bishopsgate Investment Management Ltd v Homan and others.
↑ When a person has the trust assets or parts thereof in bad faith and to what extent the third party has an obligation to investigate is very controversial in jurisprudence. See e.g. As the Rs. Brinks Ltd v Abu-Saleh or Royal Brunei Airlines Sdn Bhd v Tan or Twinsectra Ltd v Yardley or Barlow Clowes International Ltd v Euro Trust International Ltd. and Tang Man Sit v capacious Investments Ltd .
↑ In Anglo-American law, a distinction is made between tracing in common law and in equity law , with very different legal consequences (see e.g. the Rs: MCC Proceeds v Lehman Brothers or Boscawen v Baja ) Equity law is particularly applicable there suitable where it is a matter of the unfaithful mixing of trust property with the trustee's private assets.
↑ Johann Christoph Adelung in “Grammatical-Critical Dictionary of High German Dialect” (Vienna edition 1811) says, among other things: “In a narrower and more common sense, the trace is the impression of the movement of a thing in the ground, as well as of living creatures, as well as in the broader sense of inanimate things. "
↑ Quoted from Gerhard Köbler : Lexicon of European Legal History .
↑ Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, p. 53. According to the more recent Frisian legal book z. B. with the cry: Tie uta, tie uta, ende helpet mi myn gued weer to wynnen ( German : pull out, pull out, help me to win my property again ).
↑ Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus Successor, pp. 55, 59, 61.
↑ Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus Successor, p. 56.
↑ Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus Successor, p. 58.
↑ Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, pp. 77, 113.
↑ See Art 912 Paragraph 4 PGR
↑ This is largely recognized in Anglo-American law when a bona fide buyer of the property in question has taken over and paid for it in full and is more worthy of protection in relation to the previous beneficiaries. In detail, however, this problem is subject to considerable legal controversy. See e.g. B. Rs. Bank of Credit and Commerce International (Overseas) Ltd v Akindele or Belmont Finance Corp v Williams Furniture Ltd (No 2) or Diplock .
↑ Rs 1 Cg 2001,379

[1] Also: "Right to follow the Trust Property".

[2] However, the terminology is not used uniformly. For the problem of “tracing”, see basically z. B. Rs. Hallett's Estate, Oatway , Barlow Clowes International Ltd v Vaughan , Bishopsgate Investment Management Ltd v Homan and others.

[3] When a person has the trust assets or parts thereof in bad faith and to what extent the third party has an obligation to investigate is very controversial in jurisprudence. See e.g. As the Rs. Brinks Ltd v Abu-Saleh or Royal Brunei Airlines Sdn Bhd v Tan or Twinsectra Ltd v Yardley or Barlow Clowes International Ltd v Euro Trust International Ltd. and Tang Man Sit v capacious Investments Ltd .

[4] In Anglo-American law, a distinction is made between tracing in common law and in equity law , with very different legal consequences (see e.g. the Rs: MCC Proceeds v Lehman Brothers or Boscawen v Baja ) Equity law is particularly applicable there suitable where it is a matter of the unfaithful mixing of trust property with the trustee's private assets.

[5] Johann Christoph Adelung in “Grammatical-Critical Dictionary of High German Dialect” (Vienna edition 1811) says, among other things: “In a narrower and more common sense, the trace is the impression of the movement of a thing in the ground, as well as of living creatures, as well as in the broader sense of inanimate things. "

[6] Quoted from Gerhard Köbler : Lexicon of European Legal History .

[7] Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, p. 53. According to the more recent Frisian legal book z. B. with the cry: Tie uta, tie uta, ende helpet mi myn gued weer to wynnen ( German : pull out, pull out, help me to win my property again ).

[8] Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus Successor, pp. 55, 59, 61.

[9] Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus Successor, p. 56.

[10] Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus Successor, p. 58.

[11] Karl Rauch, Track following and Anefang in their reciprocal relationships , Weimar 1908, Hermann Böhlaus successor, pp. 77, 113.

[12] See Art 912 Paragraph 4 PGR

[13] This is largely recognized in Anglo-American law when a bona fide buyer of the property in question has taken over and paid for it in full and is more worthy of protection in relation to the previous beneficiaries. In detail, however, this problem is subject to considerable legal controversy. See e.g. B. Rs. Bank of Credit and Commerce International (Overseas) Ltd v Akindele or Belmont Finance Corp v Williams Furniture Ltd (No 2) or Diplock .

[14] Rs 1 Cg 2001,379