tracing
noun · dingliche Surrogation
No general German equivalent. Equity lets a claimant trace value into substitute assets and claim them proprietarily; German law follows value only in narrow statutory pockets, dingliche Surrogation, §§ 2019, 2111 BGB, and Ersatzaussonderung for identifiable proceeds, § 48 InsO.
Which translation, when
Why
Tracing is a process, and German law has no general version of it. In equity a claimant can trace the value of an asset through its substitutions, even through mixed funds, and assert a proprietary claim to what it became, which is what makes tracing powerful against an insolvent or a third party. German law follows value only where a statute says so, and then narrowly. Within an estate the Erbschaftsanspruch carries a dingliche Surrogation, § 2019 BGB, so that what the apparent heir acquires with means of the estate falls back into it, and § 2111 BGB does the same for a Vorerbschaft. In insolvency § 48 InsO allows Ersatzaussonderung, following the still identifiable proceeds of a wrongfully sold asset, but only for someone who already had a right to separate the asset, and only while the proceeds remain distinguishable in the estate. There is no general tracing into freely mixed money and no proprietary claim to substitutes at large. So rendering tracing as though German law allowed a claimant to follow value into whatever it became overstates what is available, and the difference is decisive in insolvency.
Typical mistakes
- German law has no general tracing: value is followed only in narrow statutory cases, dingliche Surrogation within an estate, §§ 2019, 2111 BGB, so a general proprietary following should not be implied.
- Ersatzaussonderung, § 48 InsO, needs a pre-existing right to separate the asset and identifiable proceeds; it is not tracing into freely mixed funds, and treating it as a general remedy overstates it.
- The proprietary bite that makes English tracing matter in insolvency does not carry across to a personal claim, so the claimant’s priority should not be assumed from the word.
What matters
Chasing misapplied funds through several accounts before a German insolvency: English tracing would reach the substitutes proprietarily, German law will not in general. Only the narrow routes apply, dingliche Surrogation within an estate, §§ 2019, 2111 BGB, or Ersatzaussonderung for identifiable proceeds, § 48 InsO, and the memo should say which, not assume a general following.
What the machine misses
Machine output renders tracing as Rückverfolgung or Nachverfolgung, logistics words that carry none of the proprietary sense. Worse, it lets the reader assume German law follows value into substitutes as equity does, when it does so only in narrow statutory pockets, §§ 2019 and 2111 BGB and § 48 InsO. The priority that makes tracing worth pursuing in an insolvency is not there, and the rendering hides that.
Examples
| to trace the proceeds | den Erlös verfolgen |
| tracing into a mixed fund | die Verfolgung in ein vermischtes Vermögen |
| a proprietary claim to the substitute asset | ein dinglicher Anspruch auf das Surrogat |
| the right to trace | das Recht zur Verfolgung des Wertes |
More notes on these sections
constructive trust Bereicherungsanspruch