5. Partners and Each Other

2015 ◽  
Author(s):  
Geoffrey Morse
Keyword(s):  
Good Faith ◽  
Fiduciary Duties ◽  
Full Disclosure ◽  
Financial Obligations ◽  
Partnership Agreement

This chapter explores the two aspects of internal partnership relations, fiduciary duties out of the fiduciary relationship and contractual duties and obligations arising from the agreement. It emphasizes the ‘good faith’ principle in partnerships, considered to be the foundation of every partnership. Alongside good faith between partners is the duty to care which is expressed through the standard of skill to be expected. The chapter first assesses this standard. It then provides an overview of fiduciary duties, examining the three main aspects of fiduciary duties incorporated in Sections 28 to 30 of the Partnership Act 1890 which relate to honesty and full disclosure, unauthorized personal profits, and conflict of duty and interest. These fiduciary duties may cease when one partner repudiates the partnership agreement, such as by refusing to honour financial obligations.

Fiduciary Principles in Contemporary Common Law Systems

2019 ◽  
pp. 564-582
Author(s):  
Matthew Conaglen
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Standards Of Care ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Similarities And Differences ◽  
Fiduciary Relationships

This chapter examines the principles of fiduciary doctrine that are found in contemporary common law systems. More specifically, it considers the current similarities and differences between various jurisdictions such as England, Australia, Canada, and the United States. The similarities focus on the duties of loyalty, care and skill, and good faith, as well as when fiduciary duties arise and the kinds of interests that are protected by recognition of fiduciary relationships. The chapter also discusses the issue of differences between various jurisdictions with regard to the duty of care and skill before concluding with an analysis of differences between remedies that are made available in the various contemporary common law jurisdictions when a breach of fiduciary duty arises. It shows that the regulation of fiduciaries appears to be reasonably consistent across common law jurisdictions and across various types of actors, even as such actors are expected to meet differing standards of care. Statute plays a key role in the regulation of various kinds of fiduciary actors, especially corporate directors.

5. Partners and Each Other

2020 ◽  
pp. 157-204
Author(s):  
Geoffrey Morse ◽  
Thomas Braithwaite
Keyword(s):  
Good Faith ◽  
Fiduciary Duties ◽  
Detailed Consideration ◽  
Internal Management ◽  
Contractual Agreements ◽  
And Control ◽  
The Impact ◽  
The Relationship

This chapter concerns the relationship between partners and the interface between the contractual and fiduciary duties implicit in such a relationship, including the internal management of the firm. It examines the impact of equity on contractual agreements, including the doctrine of forfeiture. The nebulous overriding duty of good faith is followed by the statutory duties of honesty, no conflict/no profit and no competition. The implied terms in relation to management (including access to partnership information) and control, financial affairs (detailing capital, capital profits and income profits) and the limits on change of partners are followed by a detailed consideration of the validity and exercise of expulsion clauses. Finally, the chapter details the limited effects of both voluntary and involuntary assignments of a partner's share.

10. The fiduciary duty

2018 ◽  
Author(s):  
Gary Watt
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Trust Property ◽  
Fiduciary Relationships ◽  
Strict Rule

The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.

scholarly journals KEPUTUSAN BISNIS DAN TANGGUNGJAWAB DIREKSI DALAM PRINSIP FIDUCIARY DUTIES PADA PERSEROAN TERBATAS

2019 ◽  
Vol 1 (2) ◽  
pp. 37-56
Author(s):  
Ali Muhayatsyah
Keyword(s):  
Board Of Directors ◽  
General Principle ◽  
Limited Liability ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Limited Liability Company ◽  
Fiduciary Duties ◽  
Business Judgment Rule ◽  
The Board Of Directors ◽  
Full Sense

The main party charged with fiduciary duty is the board of directors. In UUPT No. 40/2007 it does not specifically regulate fiduciary duty but rather regulates general principles. From the general principle of fiduciary duty, directors in managing the company must pay attention to the interests of the company above other interests; directors must act in accordance with the aims and objectives of the company (intra vires), and pay attention to the limitations and restrictions determined by the law and the articles of association of the company. In carrying out their duties as directors, they are required to have in good faith and in full sense of responsibility; Directors must carry out their duties diligently, carefully, and smartly and skillfully. Keywords: Directors, Fiduciary Duty, Business Judgment Rule, Limited Liability Company,   Abstrak Pihak utama yang dibebankan kewajiban fiduciary duty adalah direksi. Dalam UUPT Nomor 40 Tahun 2007 tidak mengatur secara khusus mengenai fiduciary duty tetapi mengatur prinsip-prinsip umumnya. Dari prinsip umum fiduciary duty makadireksi dalam mengurus perseroan harus memperhatikan kepentingan perseroan di atas kepentingan lainnya;direksi harus bertindak sesuai dengan maksud dan tujuan perseroan (intra vires), serta memperhatikan batasan dan larangan yang ditentukan UU dan anggaran dasar Perseroan. Dalam melaksanakan tugas sebagai direksi, diharuskan memiliki itikad baik (in good faith) dan tanggung jawab (in full sense of responsibility); Direksi harus melaksanakan tugasnya dengan rajin (diligently), penuh kehati-hatian (carefully), dan pintar serta terampil (skillfully). Kata kunci: Direksi, Fiduciary Duty, Business Judgement Rule, Perseroan Terbatas,

Conflicts and Profits

2019 ◽  
Author(s):  
Langford Rosemary
Keyword(s):  
Corporate Governance ◽  
Conflicts Of Interest ◽  
Comprehensive Analysis ◽  
Good Faith ◽  
Final Part ◽  
Fiduciary Duties ◽  
Rule Of Thumb ◽  
Underlying Principle ◽  
The Law

This chapter provides comprehensive analysis of the duties to avoid conflicts and profits (the conflicts and profits rules) and their statutory equivalents. The parameters of the term ‘conflicts’ are explored, including conflicts of interest and conflicts of duty. Debate surrounds whether ‘real sensible possibility’ of conflict is sufficient to give rise to a breach of the conflicts rule or whether proof of ‘actual’ 76 conflict or ‘pursuit’ of a conflict is necessary. The duty to avoid unauthorized profits is also discussed given that, in many cases, this duty also pertains to conflicts. The interrelationship between the duties to avoid conflicts and profits is critically analysed and comprehensive commentary on statutory iterations is provided. It is suggested that the key requirement, which also operates as a ‘rule of thumb’ and underlying principle, is that directors act in good faith in what they consider to be the interests of the company, thus exercising independent judgment. In this sense, the requirements imposed by corporate governance regimes essentially protect the ability of, and require, directors to act in good faith in the interests of the company. The final part of the chapter outlines the law concerning directors’ fiduciary duties to individual shareholders.

10. The fiduciary duty

2020 ◽  
pp. 350-381
Author(s):  
Gary Watt
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Good Faith ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Trust Property ◽  
Fiduciary Relationships ◽  
Strict Rule

The fiduciary duty is the defining duty of trusteeship and consists of several overlapping obligations intended to promote loyalty or faithfulness. As part of his fiduciary duty, the trustee should avoid conflict with the interests of the trust and not to make an unauthorised unauthorized profit from the trust property, or from his position of trust. The fiduciary duty may also apply to a person who is not a trustee, in which case he is said to be a fiduciary. This chapter examines the principal obligations of trusteeship and the implications of breach of those obligations for trustees, beneficiaries, and third parties. It first discusses the strict rule of exemplary fiduciary propriety before turning to the duty of good faith. The chapter also looks at fiduciary relationships and fiduciary duties, the fiduciary duty to avoid conflicts of interest, the fiduciary duty to account for unauthorised unauthorized profits, and trustee remuneration.

7 Fiduciary Duties and How They Arise

2015 ◽  
Author(s):  
Bamford Colin
Keyword(s):  
Good Faith ◽  
Fiduciary Duties ◽  
Conflict Rule ◽  
History Of

This chapter looks at the concept of fiduciary duties and examines the history of the idea from its emergence over a century ago through to its treatment in modern cases. It then examines the identification of relationships that are fiduciary in nature, and goes on to discuss the nature of the fiduciary duties that arise in such a relationship, in particular the duty of good faith, the duty not to make a secret profit and the ‘no conflict’ rule.

Fiduciary Principles in Fact-Based Fiduciary Relationships

2019 ◽  
pp. 1-22
Author(s):  
Daniel B. Kelly
Keyword(s):  
Ad Hoc ◽  
Good Faith ◽  
Fiduciary Duties ◽  
Legal Obligations ◽  
Wide Range ◽  
The Law ◽  
Fiduciary Relationships ◽  
Default Rules ◽  
Substantive Law ◽  
The Relationship

This chapter examines how courts apply fiduciary principles when a fiduciary relationship is based on the particular facts of a case. In a fact-based fiduciary relationship, a court must analyze the facts and circumstances of a case to determine if a party is a fiduciary. To determine whether a fact-based fiduciary relationship exists, litigants and courts have invoked a wide range of criteria. In this regard, a number of questions arise. For example, what criteria do courts utilize in evaluating fact-based fiduciaries? Given that most fiduciary relationships are based on status, why are both fact-based and status-based fiduciaries recognized by law? Is the substantive law that applies to fact-based fiduciaries equivalent or analogous to the law that applies to status-based fiduciaries. This chapter begins with a discussion of the triggers for fact-based fiduciary relationships, giving emphasis on factors that courts take into account in making ad hoc fiduciary determinations as well as the relationship between fact-based and status-based fiduciary relationships. It also explains why courts may recognize fact-based fiduciaries in certain limited circumstances before analyzing the fiduciary duties within fact-based fiduciary relationships, including the duties of loyalty and care along with other legal obligations such as confidentiality, good faith, and disclosure. After exploring the issue of mandatory and default rules in fact-based fiduciary relationships, including whether parties can waive or modify fiduciary principles, the chapter concludes by addressing remedies in fact-based fiduciary relationships.

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