Tracing Rules Essay Example | Topics and Well Written Essays - 2000 words

Tracing Rules - Essay Example It need not be a proprietary right. Often the tracing exercise begins with a bank account, which is a personal right against a bank.1 And sometimes, the repository of value with which the plaintiff begins is not a right at all, but is rather in the form of services. Services can enhance the value of assets, and in this way the value inherent in the services can be traced into the enhanced asset. It is sometimes said that a prerequisite to tracing in a court of equity is the establishment of a fiduciary relationship.2 If this were true, the consequences would be startling. A trustee sells trust land, and deposits the proceeds into a bank account into which he has earlier deposited some money of his own. A court of equity will allow the beneficiary to trace from the land, previously owned by the claimant in equity, into the balance in the bank account. It will also allow claimant to assert equitable proprietary rights in the bank account; that is a separate issue. On the other hand, a thief steals some money from claimant and pays it into a bank account into which thief has earlier deposited some money of his own. The tracing exercise would appear to be even simpler. But the thief does not owe fiduciary obligations to claimant. If it is true that a fiduciary relation is a prerequisite to tracing in a court of equity, then a court of equity is unable to trace into the bank account in the second situation. This seems absurd. What could possibly be the reason for such a requirement The standard explanation is that it is necessary to found the jurisdiction of equity: Agip ( Africa) Ltd v. Jackson. When a plaintiff wishes to conduct the exercise of tracing, he wishes to establish that the value inherent in his asset has been used to acquire another asset. That alone neither gives nor denies hearing jurisdiction to the Court of Chancery or its successor, a court exercising equitable jurisdiction. If the plaintiff is seeking specific performance or rectification, then t he Court of Chancery would have hearing jurisdiction, and it would allow him to try to prove the making of the contract. If he was merely seeking damages for breach of contract, then the Court of Chancery had no order jurisdiction to grant that remedy and so it would decline hearing jurisdiction.3 The exercise of proving the existence of the contract is neither peculiarly equitable nor peculiarly legal.4 The fact that a plaintiff wishes to trace is not determinative of whether the court has hearing jurisdiction. It is an exercise which is neither peculiarly equitable nor peculiarly legal. Moreover, it is neither peculiarly proprietary nor peculiarly personal; tracing is not a right but an exercise. But equitable rights, properly so called, are different in many ways from common law rights, and so the relief sought by the plaintiff is peculiarly equitable or peculiarly legal. Whether or not there is equitable jurisdiction to hear a claim is determined by the relief which is sought. I f the plaintiff asserts that she holds equitable proprietary rights in some new asset, then that is a claim which only a court of equity can evaluate; and that is the source of the court's hearing jurisdiction. But it makes no sense that a plaintiff should have to establish a fiduciary relationship merely to conduct the exercise of showing that her asset was used to acquire some other asset. When the Court of Appeal expressed its view that a fiduciary

Is water a natural right or is it a commodity Essay

Is water a natural right or is it a commodity - Essay Example Different civilizations throughout history considered water as a mutual property resource and not an open access resource. Hence there were different priorities over water usage. Drinking water had the highest priority; nobody who wanted drinking water was turned away. The community well dug by the community in general was freely used by the community. In a civilization like Rome, shows a typical example of how water was allocated when there was an actual allocation and sanitation system. They had an unrestricted water source recognized as the lacus. Here the Romans rich or poor could collect water for free. The use of lacus required one to transport the water to their private homes using their own labour and money. Then there was another kind of executive supply of water whereby the water would be delivered to the homestead via pipe for a fee. It was an actual right recognized by the Roman and the Jewish law which was known as the â€Å"Right to thirst†. This shows that human beings since the early civilization have recognized water especially drinking water as a human right and not a commodity (Branco, 150). In today’s world, international human rights and law have been put in place which acknowledges water as a human right and not a commodity. This was agreed on after a lot of discussion and debate by 122 countries. This decision was arrived at formally in 28 July 2010. This was done in a General Assembly (GA) resolution (A/64/292 which was established on draft resolution A/64/L>63/Rev.1.) It led to the UN Human Rights Council espousing an obligatory resolution that acknowledged that the human right to water and sanitation is an element of the right to a sufficient standard of living. Although it is recognized in international law it cannot be imposed in the national echelon until it’s integrated into the national legislation (Gupta, 304). This resolution confirms that the human right to nontoxic drinking water and sanitation is originat ed from the right to adequate standard of living and is inextricably tied to the right of the highest possible standard of physical and mental health, also the right to life and human dignity. This right places several responsibilities on governments. They are meant to ensure that all their citizens can access sufficient, uncontaminated water and affordable in an equal manner. Some of the uses that water should be availed for include drinking, personal sanitation, washing clothes, food preparation and personal hygiene. The States should ensure that first priority should go to personal and domestic uses over other uses. This water should be sufficient, clean affordable and accessible. Governments should also take up secondary priorities of irrigation and availing water for manufacturing in an affordable manner (International water sanitation center, 204). The number of people unable to access clean and improved sources of domestic and drinking water is 780 million and at least 2.6 bi llion lacking access to sanitation services. This shows that still a lot has to be done to make sure water is accessible to all in the planet. Other problems that have afflicted secure and accessible sourcing of water is the cross-border conflicts in the Middle East, The Eastern Mediterranean and other parts of North America. Some non-governmental organizations (NGOs) and researchers have tried to establish the fact that the right to water is also

Use Websites For Research Papers

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Who is Concerned About Essay on Powerful Writing and Why You Need to be Paying Attention

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Why Almost Everything Youve Learned About Topics for My Senior Research Paper Is Wrong and What You Should Know

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