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RDG
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Much depends on the wording of your proceeds provision.
UCC 9-306 has caused great difficulties of interpretation, especially
9-306(4)(d)(ii). See citations in the Law of Tracing, p. 26 n. 58; p.
142 n. 35. Revised article 9's provision will be reworded.
My own view is that much depends on whether the debtor
acted lawfully or wrongfully in mixing the proceeds of sale: Tracing,
199-201, 211-212. The process is not difficult if the rule of law is that
holders of security interests are allowed to assert that their proceeds
are in the account, so long as the balance is enough to be consistent
with the assertion. It would be difficult if you used something like the
rule in Clayton's Case.
For a slightly different view from a PPSA expert, see
RCC Cuming, "Protecting Interests in Proceeds: Equity and Canadian Personal
Property Security Acts" ch 18 in DWM Waters ed., Equity Fiduciaries and
Trusts 1993 (Carswell, 1993).
The particular situation I wish to
address is one which is common following a corporate failure: a single
bank account through which there are voluminous transactions and all
sorts of unpaid vendors of products which have been onsold trying to
unravel the bank account and recover the proceeds of their individual
sales. It seems self evident to me that even if there was a bank account
with a credit balance, this process would be simply too difficult. I
can analyse it through in terms of principle, but it would be nice to
be able to refer to authority on point.
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