scholarly journals A Lie Is a Lie: The Ethics of Lying in Business Negotiations

2021 ◽  
pp. 1-31
Author(s):  
Charles N. C. Sherwood
Keyword(s):  
Fiduciary Duty ◽  
Business Context ◽  
Business Negotiations ◽  
Greater Good ◽  
The Common ◽  
Self Defence

I argue that lying in business negotiations is pro tanto wrong and no less wrong than lying in other contexts. First, I assert that lying in general is pro tanto wrong. Then, I examine and refute five arguments to the effect that lying in a business context is less wrong than lying in other contexts. The common thought behind these arguments—based on consent, self-defence, the “greater good,” fiduciary duty, and practicality—is that the particular circumstances which are characteristic of business negotiations are such that the wrongness of lying is either mitigated or eliminated completely. I argue that all these “special exemption” arguments fail. I conclude that, in the absence of a credible argument to the contrary, the same moral constraints must apply to lying in business negotiations as apply to lying in other contexts. Furthermore, I show that for the negotiator, there are real practical benefits from not lying.

scholarly journals Financial Twilight Re-Appraisal: Ending the Judicially Created Quagmire of Fiduciary Duties to Creditors

2017 ◽  
Vol 78 (2) ◽  
Author(s):  
Anil Hargovan ◽  
Timothy M. Todd
Keyword(s):  
Risk Taking ◽  
Financial Distress ◽  
The United States ◽  
Corporate Law ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Financial Interests ◽  
The Common ◽  
Corporate Rescue ◽  
Judicial Recognition

Directors owe fiduciary duties of care and loyalty to their corporations, and by extension to their shareholders. When a corporation approaches or enters insolvency, however, courts have recently found that the fiduciary duty calculus may change. Recognizing that creditors have financial interests similar to those of shareholders at or near insolvency, courts in several countries have extended fiduciary duty protection to creditors on equitable grounds. This trend has led to a state of flux and uncertainty in corporate law. Consequently, courts and commentators are battling to fully comprehend the controversial subject of director fiduciary duties to creditors in various jurisdictions. Due to this jurisprudential flux, unresolved issues include, for example, the core notion that the duty arises when the company enters into an “ill-defined sphere” known as the “zone” or “vicinity” of insolvency. The law is remarkably short of specific judicial guidance as to how directors who engage in commercial risk-taking with a view to corporate rescue should discharge their duties without harming the interests of creditors. Indeed, the debate continues even on the critical doctrinal question of whether such a duty is even needed.This Article uses corporate law in both the United States and Australia as emblematic of the real practical concerns inherent in the expansion of fiduciary duties. Consequently, the Article argues that the judicial recognition of directors’ fiduciary duties to creditors when at or near insolvency is objectionable, both from a policy and a doctrinal standpoint, and that any further attempt to develop the common law in this regard should be jettisoned in favor of reliance upon the existing, or modified, statutory regime aimed at creditor protection during times of financial distress. 

The Fiduciary Duty of Loyalty

2019 ◽  
pp. 383-403 ◽  
Author(s):  
Andrew S. Gold
Keyword(s):  
Conflicts Of Interest ◽  
Fiduciary Duty ◽  
Central Concept ◽  
Common View ◽  
The Core ◽  
The Common ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
Default Rules ◽  
Core Features

This chapter addresses the fiduciary duty of loyalty. Loyalty is a central concept in fiduciary law, even as scholars differ on whether we should reason from fiduciary relationships to loyalty obligations, or the other way around. Nonetheless, the common view across jurisdictions and across theories is that loyalty is vital to fiduciary relationships. This chapter first provides an overview of the core features of fiduciary loyalty, with particular emphasis on the no-conflict rules, which have two basic components: a rule against conflicts of interest and a rule against conflicts of duty. It then considers the no-profit rule and how it relates to the rules against conflicts of interest, along with duties of good faith and disclosure and the link between fiduciary loyalty and other obligations. It also discusses remedies that are generally associated with breach of loyalty, including the disgorgement remedy, as well as specific contexts that modify the effect or scope of fiduciary loyalty obligations (for example, contractual modifications of legal default rules or cases where there are multiple beneficiaries), and additional factors that affect application of the fiduciary duty of loyalty. The chapter concludes with an analysis of theories that explain fiduciary loyalty as a category.

Unpacking Justifications

2021 ◽  
pp. 440-468
Author(s):  
A P Simester
Keyword(s):  
Legal System ◽  
Common Law ◽  
The Common ◽  
Lesser Evils ◽  
Self Defence

This chapter examines justifications. The common law knows a range of rationale-based defences according to which otherwise pro tanto wrongs may become permitted. By articulating justificatory defences like self-defence and necessity, the legal system adds the interstitial nuance that its prohibitions require. Unlike most other justifications, however, lesser-evils necessity is unconfined by reference to specific contexts, such as protecting oneself from attack or executing an arrest. Its field of application is amorphous and open-ended. The chapter then considers why necessity differs from those other, ‘primary’, justifications. It develops two theses: wrong-dependence and justification-dependence. In wrong-dependence, whether a person’s offence is justified depends on the type of (pro tanto) wrong that offence is. In justification-dependence, whether a person’s offence is wrong (simpliciter) depends on the type of justification that the person has. The chapter argues that cases of lesser-evils necessity are special, in that they are cases of a justified wrong. By contrast, primary justifications such as self-defence do not involve a wrong but only a pro tanto one. The importance of urgency requirements in rationale-based defences is also discussed.

Interpreting the Contours of Self-Defence within the Boundaries of the Rule of Law, the Common Law and Human Rights

2015 ◽  
Vol 79 (5) ◽  
pp. 330-343
Author(s):  
Catherine Elliott
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Rule Of Law ◽  
Common Law ◽  
European Convention ◽  
The Rule Of Law ◽  
The Common ◽  
Criminal Legal System ◽  
Objective Concept ◽  
Self Defence

The Crime and Courts Act 2013 has amended s. 76 of the Criminal Justice and Immigration Act 2008 on the amount of force a person can use in self-defence. The amended provision poses a dilemma for the courts: it states that only reasonable force can be used by a householder against a trespasser, but adds that force is unreasonable if it is grossly disproportionate. Until now, the courts have treated reasonable force and proportionate force as synonyms. This article suggests that the amended s. 76 should be interpreted to comply with the rule of law, incorporating the idea of equality before the law and legality. The courts should respect the traditional common law concept of reasonableness which is an impartial, objective concept that plays an important role across the whole of the criminal legal system. In addition, the article points out that the Act must be interpreted, where possible, in accordance with the European Convention on Human Rights to avoid the problems that arose with the defence of lawful chastisement.

4. Non-Fatal Offences Against the Person

2020 ◽  
pp. 56-79
Author(s):  
Mischa Allen
Keyword(s):  
Criminal Law ◽  
Study Skills ◽  
Common Law ◽  
Questions And Answers ◽  
The Common ◽  
Assault And Battery ◽  
Self Defence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, author commentary, and advice on study skills. This chapter presents sample exam questions on non-fatal offences against the person and suggested answers. The questions cover all the typical offences against the person one would expect to find on a standard criminal law syllabus. The emphasis in this chapter is on the Offences Against the Person Act 1861, in particular ss 18, 20, and 47. Common law assault and battery are also covered. Self-defence and the common law defence of consent are also considered.

4. Non-Fatal Offences Against the Person

2016 ◽  
Author(s):  
Mischa Allen
Keyword(s):  
Criminal Law ◽  
Common Law ◽  
Questions And Answers ◽  
The Common ◽  
Assault And Battery ◽  
Self Defence

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, diagram answer plans, suggested answers, and author commentary. This chapter presents sample exam questions on non-fatal offences against the person and suggested answers. The questions cover all the typical offences against the person one would expect to find on a standard criminal law syllabus. The emphasis in this chapter is on the Offences Against the Person Act 1861, in particular ss. 18, 20, and 47. Common law assault and battery are also covered. Self-defence and the common law defence of consent are also considered.

scholarly journals The Paradox of Disallowing Duress as a Defence to Murder

2014 ◽  
Vol 78 (1) ◽  
pp. 65-79 ◽  
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Common Law ◽  
Deadly Force ◽  
Sharp Contrast ◽  
Disparate Treatment ◽  
Moral Culpability ◽  
The Common ◽  
The Law ◽  
Mitigating Circumstances ◽  
Partial Defences ◽  
Self Defence

The common law has long recognised that what would otherwise constitute murder should be reduced to the lesser offence of voluntary manslaughter in instances where the accused was induced to kill because of provocative conduct on the part of the deceased that does not amount to lawful excuse or justification such as self-defence or defence of others. In what is often termed as a reasonable concession to human frailty, the law has opted to treat those who kill under such circumstances as less morally blameworthy than those who kill in the absence of such provocation or other mitigating circumstances such as a genuinely held, albeit objectively unreasonable belief, that the use of deadly force was necessary in self-defence or the defence of another person. In sharp contrast, the common law has steadfastly declined to allow the defence of duress to be interposed in like manner as a partial defence to the crime of murder. The discussion to follow will examine whether this disparate treatment is justifiable in light of the stated underpinnings of these defences. The discussion will conclude by exploring various proposals for reform and the extent to which they are likely to result in sanctions that are commensurate with the relative degrees of moral culpability of those who seek to interpose these defences as complete or partial defences to the crime of murder.

The Company’s Remedies for Breach of Directors’ General Duties

2017 ◽  
Author(s):  
Antony Zacaroli
Keyword(s):  
Common Law ◽  
Fiduciary Duty ◽  
Reasonable Care ◽  
The Common ◽  
Breach Of Duty ◽  
A Company ◽  
Made In

The Companies Act 2006 has effected no change to the remedies which lie against a director for breach of duty. Section 178(1) provides that ‘the consequences of breach (or threatened breach) of s 171–7 are the same as would apply if the corresponding common law rule or equitable principle applied’, and s 178(2) provides that the duties set out in ss 171–3 and 175–7 ‘are, accordingly, enforceable in the same way as any other fiduciary duty owed to a company by its directors’. No separate express provision is made in respect of the duty to exercise reasonable care, skill, and diligence (set out in s 174), but it is clear that the remedies for breaches of that duty are those provided by the common law.

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