13. The law governing fiduciaries

2019 ◽  
pp. 384-428
Author(s):  
JE Penner
Keyword(s):  
Basic Rule ◽  
Fiduciary Duties ◽  
Conflict Rule ◽  
Fair Dealing ◽  
The Core ◽  
Personal Nature ◽  
The Subject ◽  
The Law ◽  
Secondary Liability

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses the nature and scope of fiduciary duties. It begins by considering the ‘no conflict’ rule, the basic rule governing fiduciaries. Under the rule, a fiduciary is liable to account for any profit he obtains in circumstances where his interests may conflict with his duty to his principal. It then turns to rules governing authorised profits; unauthorised profits and the liability to account for them; self-dealing and fair dealing rules; the proprietary and personal nature of the liability to account; equitable compensation for breach of fiduciary obligation; and secondary liability for breach of fiduciary obligation.

1. The historical origins of the trust

2019 ◽  
pp. 1-13
Author(s):  
JE Penner
Keyword(s):  
Common Law ◽  
The Core ◽  
Administrative Power ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Historical Origins

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter traces the historical roots of the trust. The law of trusts is the offspring of a certain English legal creature known as ‘equity’. Equity arose out of the administrative power of the medieval Chancellor, who was at the time the King’s most powerful minister. The nature of equity’s jurisdiction and its ability to provide remedies unavailable at common law, the relationship between equity and the common law and the ‘fusion’ of law and equity, and equity’s creation of the use, and then the trust, are discussed.

Evidence

2017 ◽  
Author(s):  
Roderick Munday
Keyword(s):  
Burden Of Proof ◽  
Expert Evidence ◽  
The Core ◽  
The Subject ◽  
The Law ◽  
Book Covers ◽  
Law Of Evidence ◽  
The Ideal

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. Written by leading academics and renowned for their clarity, these concise texts explain the intellectual challenges of each area of the law. Evidence provides students with a succinct yet thought-provoking introduction to all of the key areas covered on undergraduate law of evidence courses. Vibrant and engaging, the book sets out to demystify a traditionally intimidating area of law. Probing analysis of the issues, both historical and current, ensures that the text contains a thorough exploration of the ‘core’ of the subject. The book covers: the relevance and admissibility of evidence; presumptions and the burden of proof; witnesses: competence, compellability and various privileges; the course of the trial; witnesses’ previous consistent statements and the remnants of the rule against narrative; character and credibility; evidence of the defendant’s bad character; the opinion rule and the presentation of expert evidence; the rule against hearsay; confessions; drawing adverse inferences from a defendant’s omissions, lies or false alibis; and identification evidence. A clearly structured introduction, this is the ideal text for any student who may find evidence a somewhat forbidding subject.

1. What is tort?

2013 ◽  
Author(s):  
Steve Hedley ◽  
Nicola Padfield
Keyword(s):  
The Core ◽  
The Subject ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter begins with an overview of the law of tort, covering its definition, types of misconduct, types of injury, and its main functions. It then introduces the two major institutions of the law of tort: the tort of negligence and the role played by statute law.

8. Protection of reputation

2013 ◽  
Author(s):  
Steve Hedley ◽  
Nicola Padfield
Keyword(s):  
The Core ◽  
The Subject ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines tort for the protection of reputation. Reputation is protected principally by the tort of defamation. Defamation is almost unique among the torts: it is very often heard before a judge and jury, rather than a judge alone. The role of the jury is to determine matters of fact and to determine the level of damages. The chapter discusses liability; remedies; absolute defences; qualified defences; other torts protecting reputation; and reform of the law.

4. Promoters and pre-incorporation contracts

2016 ◽  
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Common Law ◽  
Legal Aspects ◽  
Freedom Of Establishment ◽  
Fiduciary Duties ◽  
The Core ◽  
The Subject ◽  
The Common ◽  
A Company ◽  
Corporate Mobility

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on one area where the motives of ‘promoters’ (that is, those who form a company) are relevant to the legal aspects of certain activities carried out in the company’s name, especially when they enter into contracts for the company prior to its formal registration. After defining the term ‘promoter’, the chapter discusses the fiduciary duties of promoters and the range of remedies available to the company against a promoter who breaches his fiduciary duties. It then considers problems involving contracts entered into prior to incorporation and the common law position on such contracts. It also explains pre-incorporation contracts, deeds, and obligations under Section 51 of Companies Act 2006 before concluding with an analysis of the issue of corporate mobility in relation to the freedom of establishment.

4. Promoters and pre-incorporation contracts

2018 ◽  
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Common Law ◽  
Legal Aspects ◽  
Freedom Of Establishment ◽  
Fiduciary Duties ◽  
The Core ◽  
The Subject ◽  
The Common ◽  
A Company ◽  
Corporate Mobility

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter focuses on one area where the motives of ‘promoters’ (that is, those who form a company) are relevant to the legal aspects of certain activities carried out in the company’s name, especially when they enter into contracts for the company prior to its formal registration. After defining the term ‘promoter’, the chapter discusses the fiduciary duties of promoters and the range of remedies available to the company against a promoter who breaches his fiduciary duties. It then considers problems involving contracts entered into prior to incorporation and the common law position on such contracts. It also explains pre-incorporation contracts, deeds, and obligations under Section 51 of Companies Act 2006 before concluding with an analysis of the issue of corporate mobility in relation to the freedom of establishment.

9. Parties, and liability for others

2013 ◽  
Author(s):  
Steve Hedley ◽  
Nicola Padfield
Keyword(s):  
The Core ◽  
The Subject ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter discusses liability for torts committed by others. The defendant may be liable for torts committed by others in a number of situations. These situations include: where the defendant’s employee commits a tort; where the defendant was under a duty to prevent others committing torts; and where the defendant’s duty was non-delegable. Where a number of different people are responsible for the same damage, then as between themselves, the law may make a rough apportionment of blame. But each one of them is liable to the claimant for the whole of the loss.

6. Security interests in land

2013 ◽  
Author(s):  
Kevin Gray ◽  
Susan Francis Gray
Keyword(s):  
Modern World ◽  
The Core ◽  
Security Interest ◽  
Potential Source ◽  
The Subject ◽  
The Creation ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. Land is a potential source for a number of important security interests. In particular, a ‘mortgage’ (or ‘charge’) of land initiates one of the most significant kinds of credit relationship in the modern world. This chapter discusses the following: the creation and termination of various kinds of mortgage or charge over land; the means by which the law affords protection to the borrower (or ‘mortgagor’); the means by which the law affords protection to the lender (or ‘mortgagee’); the remedies available to the mortgagee in the event of default by the mortgagor; the priority of mortgages inter se; and other forms of security interest in land such as rentcharges and rights of entry.

Directors’ Duties

2020 ◽  
pp. 175-222
Author(s):  
Paul Davies
Keyword(s):  
Conflict Of Interest ◽  
Company Law ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
The Core ◽  
The Law ◽  
Duty Of Loyalty ◽  
Substantive Law

This chapter examines the law on directors’ duties, as restated in the Companies Act 2006, other than the core duty of loyalty which is discussed in Chapter 2. It covers the duty of care, the duty to act within powers, the duty to exercise independent judgement, and, most importantly, the application of fiduciary duties to various types of conflict of interest. Many of the most interesting doctrinal questions about company law arise in this area and it is righly placed at the center of many company law courses. However, it may that other sets of rules, discussed in earlier chapters, are more important in practice in the regulation of internal company relations. In addition to the substantive law, the remedies available in respect of breaches are analysed, as is the freedom of shareholders to waive breaches of duty, both after and before the event.

11. Statutory shareholder remedies

Company Law ◽  
2020 ◽  
pp. 207-254
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Minority Shareholders ◽  
Classic Case ◽  
The Core ◽  
Locus Standi ◽  
The Subject ◽  
The Law

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter deals with statutory remedies available to aggrieved minority shareholders, particularly their right to seek relief through a winding-up order on the just and equitable ground. It first considers the classic case of Ebrahimi v Westbourne Galleries Ltd (1973), which addressed the scope of the court’s jurisdiction under the just and equitable ground, and presents illustrations of the grounds which will support a petition under s 122(1)(g) of the Insolvency Act 1986. It also examines the issue of whether the principles promulgated in Ebrahimi extend beyond the statutory context of just and equitable winding-up by focusing on the case of Clemens v Clemens Bros Ltd (1976). In addition, the chapter gives examples of unfair prejudice, explains locus standi and procedural aspects of s 994 of the Companies Act 2006, and looks at other specific statutory rights available to aggrieved minority shareholders. Finally, it explains the Law Commission’s proposed reforms for the unfair prejudice provision.

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