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.

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.

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.

14. Directors’ duties

2016 ◽  
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Fiduciary Duty ◽  
The Core ◽  
The Subject ◽  
Breach Of Duty

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 is concerned with the duties which a director owes to the company, including duty to act within powers, duty to promote the company’s success, duty to exercise independent judgement, duty not to accept benefits from third parties, and duty to avoid conflicts of interest. After reviewing the general duties of directors under Part 10 of the Companies Act 2006, the chapter discusses the fiduciary position of directors, the remedies for breach of directors’ duties, and the liability of those who assist a director in the course of a breach of fiduciary duty. Finally, it considers three ways in which a director who is in breach of duty may be relieved from liability.

14. Directors’ duties

2018 ◽  
Author(s):  
Alan Dignam ◽  
John Lowry
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Fiduciary Duty ◽  
The Core ◽  
The Subject ◽  
Breach Of Duty

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 is concerned with the duties which a director owes to the company, including duty to act within powers, duty to promote the company’s success, duty to exercise independent judgement, duty not to accept benefits from third parties, and duty to avoid conflicts of interest. After reviewing the general duties of directors under Part 10 of the Companies Act 2006, the chapter discusses the fiduciary position of directors, the remedies for breach of directors’ duties, and the liability of those who assist a director in the course of a breach of fiduciary duty. Finally, it considers three ways in which a director who is in breach of duty may be relieved from liability.

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,

16. Directors’ duties

2018 ◽  
Author(s):  
Derek French
Keyword(s):  
Conflicts Of Interest ◽  
Third Parties ◽  
Fiduciary Duty ◽  
Reasonable Care ◽  
Breach Of Duty ◽  
Secondary Liability

This chapter deals with the seven general duties of directors as spelled out in the Companies Act 2006: duty to act within powers; duty to promote the success of the company; duty to exercise independent judgement; duty to exercise reasonable care, skill and diligence; duty to avoid conflicts of interest; duty not to accept benefits from third parties; and duty to declare interest in proposed transaction or arrangement. After providing a background on the codification of directors’ general duties, the chapter turns to the fiduciary duty of directors, including shadow and de facto directors. It also examines statutory requirements involving property transactions; loans, quasi-loans and credit transactions; associated companies and persons ‘connected’ with a director; equitable remedies for breach of duty; the ways in which directors can be relieved of liability; and secondary liability with regards to property.

Fiduciary Principles in Legal Representation

2019 ◽  
pp. 263-285
Author(s):  
Richard W. Painter
Keyword(s):  
Conflicts Of Interest ◽  
Common Law ◽  
Fiduciary Duty ◽  
Professional Responsibility ◽  
Duty Of Care ◽  
Fiduciary Duties ◽  
Legal Representation ◽  
Mandatory Rules ◽  
The Subject ◽  
The Relationship

This chapter examines the fiduciary duties of lawyers, and especially how such duties shape—and are shaped by—their other professional responsibilities. It begins with a discussion of the legal basis of lawyers’ fiduciary duties as well as the circumstances that trigger a lawyer-client fiduciary relationship. It then considers the lawyers’ fiduciary duty of loyalty, focusing on the duty to avoid conflicts of interest, the duty of confidentiality owed by a lawyer to a client, the duty of candor, and the duty to communicate to the client information that the latter needs to make informed decisions about the subject matter of the representation. It also explores the lawyer’s fiduciary duty of care, including the duty to familiarize himself with the client’s affairs and to safeguard confidential information; the relationship between fiduciary duties and other duties of professional responsibility; cases where lawyers are subject to the specific duties of a common law trustee; and two types of mandatory rules to which lawyers, as professional fiduciaries, are subject and that cannot be waived with client consent: mandatory rules of professional responsibility and generally applicable laws. The chapter concludes with an analysis of remedies available when a lawyer commits a breach of fiduciary duty, along with the unique challenges faced by lawyers when they also become trustees for their clients or third persons.

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.

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.

15. Fiduciary duties

2018 ◽  
Author(s):  
Graham Virgo
Keyword(s):  
Fiduciary Duty ◽  
Personal Interest ◽  
Fiduciary Duties ◽  
Fiduciary Obligations ◽  
Fiduciary Relationships ◽  
And Function

This chapter examines the nature of fiduciary duties and how a fiduciary relationship can be identified. It emphasizes that trustees are fiduciaries, and so are subject to fiduciary duties, but also considers other fiduciary relationships. The chapter analyses the nature and function of fiduciary obligations. It examines in detail the two core fiduciary duties of ensuring that there is no conflict between a fiduciary’s personal interest and their duty to the principal and also that a fiduciary should not profit from his or her fiduciary position. The chapter discusses the consequences of a breach of fiduciary duty and the available remedies for such a breach. In particular, the chapter considers when and why profits obtained by a fiduciary in breach of a fiduciary duty should be held on constructive trust for the principal, with particular reference to the receipt of bribes and secret commissions.

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