Questions 1 ‘For my part, I think that the true distinction lies between a proprietary claim on the one hand, and a claim which seeks only a money judgment on the other. A proprietary claim is one by which the plaintiff seeks the return of chattels or land which are his property, or claims that a specified debt is owed by a third party to him and not to the defendant…’ (Staughton LJ in Republic of Haiti v Duvalier [1990] 1 QB 202, pp 213–14). Are all proprietary claims tracing actions? (Cf Ingram v Little [1961] 1 QB 31; Bowmakers Ltd v Barnett Instruments Ltd [1945] KB 45.) 2 Is a tracing claim at common law an actio in rem or in personam? 3 What is the relationship, if any, between change of position and estoppel? 4 How can one own a debt? Why was it that the widow in Beswick v Beswick (p 249, cf p 78) could not claim that she was owner of the debts owed to her by the nephew? 5 Does one need a defence of change of position? Could it not be said that tracing, vis à vis any particular defendant, ends where that defendant in good faith has paid money forming the object of a tracing claim to a third party? 6 Should tracing attach to the money (or other tangible thing) or to the value? What difference would it make? Is the distinction between res and value important in respect of the defence of change of position? 7 Did the plaintiff in Rowland v Divall (p 236) have any property right in the purchase price while it remained in the defendant’s possession? 8 Are all debts, to a greater or lesser extent, based upon an undertaking to repay? If so, what is the basis of this undertaking? 9 Is the difference between tort and quasi-contract to be found in the historical difference between trespass and debt? 10 If the formal distinction between common law and equity were to be abolished, would an action in account become a quasi-contractual claim? (Cf English v Dedham Vale Properties, p 83.) Notes 1 One or two judges in the 19th century have observed that the debt action for money had and received is a common law version of the equitable remedy of account (see p 267). Certainly, money had and received is a useful claim for depriving those who have benefited through wrongs from retaining their profits, although its scope is wider than this. The action is useful, as Lipkin Gorman shows, as a kind of revindication claim for money paid to another by mistake, through duress or as a result of an ineffective or defective transaction. In the last situation, the plaintiff must show that the contract is ineffective and thus the quasi-contractual action is
Pages 1