Fiduciary Law and Equity

2019 ◽  
pp. 743-762
Author(s):  
Henry E. Smith
Keyword(s):  
Contract Law ◽  
Higher Order ◽  
High Variability ◽  
Second Order ◽  
Fiduciary Duty ◽  
Private Law ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
The Relationship

This chapter explores the relationship between fiduciary law and equity, focusing on an idea that largely determines the place of fiduciary law in private law: that fiduciary law is equitable. In this regard, the term “equitable” implies that fiduciary law serves a characteristic equitable function, a function that solves problems of high variability and uncertainty through higher-order or metalaw. The prominent role played by second-order law in general and the equitable function in particular is what makes fiduciary law special among areas of private law. This chapter first identifies problems addressed by second-order law, and shows how the fiduciary relationships are equitably second order, especially for trustees, other categorical fiduciaries, and fact-specific fiduciaries. It then considers the duty of loyalty as a second-order duty equitably regulating the performance of primary duties and how fiduciary remedies for breach of fiduciary duty (for example, disgorgement) are equitably second order in a way that many prototypically private law remedies are not. Finally, it examines constructive trusts as a second-order aspect of fiduciary remedies and fiduciary law’s relation to contract law.

Linking transformational leadership and “multi-dimensions” of project success

2019 ◽  
Vol 13 (1) ◽  
pp. 103-127 ◽  
Author(s):  
Umer Zaman ◽  
Shahid Nawaz ◽  
Sidra Tariq ◽  
Asad Afzal Humayoun
Keyword(s):  
Transformational Leadership ◽  
Structural Equation ◽  
Structural Model ◽  
Project Success ◽  
Higher Order ◽  
Project Managers ◽  
Second Order ◽  
Equation Modeling ◽  
Content Type ◽  
The Relationship

Purpose Transformational leadership, flexibility and visibility improves project responsiveness to highly unpredictable and impactful events referred as the ‘black swans’ in mega projects (Bloch et al., 2012; Raziq et al., 2018; Zailani et al., 2016). However, these concepts have never been empirically tested in a single framework to determine their significant impact on multi-dimensional project success. The purpose of this paper is to investigate the interactional effects of project flexibility and project visibility on the relationship between transformational leadership and “multi-dimensions” of project success including meeting design goals; impact on customers and benefits to project-based organization. Design/methodology/approach Empirical data derived from cross-sectional survey of 160 project managers from telecom intensive companies in Pakistan were used to test the conceptual framework developed from recent literature. Partial least squares-structural equation modeling (PLS-SEM) provided detailed analysis of the measurement and structural model. The most recent reflective–formative PLS-SEM approach for higher-order constructs has been introduced. Findings The results indicate that project managers’ transformational leadership (β = 0.348, p < 0.01), project flexibility (β = 0.221, p < 0.01) and project visibility (β = 0.366, p < 0.01) are positively related with the multi-dimensional project success (second-order formative) construct. Interestingly, the relationship between transformational leadership and project success is influenced by significantly negative moderations established through project flexibility (β = −0.100, p < 0.01) and project visibility (β = −0.093, p < 0.05). Research limitations/implications This study in the telecom sector examined the interactional effects of risk mitigating strategies (i.e. project flexibility and project visibility) on the relationship between transformational leadership and multi-dimensional project success. This study creates a basis for future investigations extending to various project types and relevant to different industries especially those involving higher-order (formative) assessments of project success. Practical implications The study findings assist project leaders to meet their escalating commitments in achieving project success from a multi-dimensional standpoint. Additionally, this study underscores a renewed perspective of transformational leadership and project outcomes. Despite prevailing understanding developed through prior research, transformational leadership may become less favorable for project success in conditions of increased flexibility and visibility in projects. Originality/value Earlier studies have overlooked the multi-dimensional nature of project success (second-order formative) construct, despite several attempts to examine the interplay between transformational leadership and project success. Based on the knowledge gap and non-existence of empirical evidence, the authors introduced and empirically tested the moderating role of project flexibility and project visibility in the relationship between transformational leadership and multi-dimensional project success.

Shaping and Re-shaping the Duty of Loyalty in Japanese Law

2019 ◽  
Vol 14 (S1) ◽  
pp. S119-S146
Author(s):  
Eriko TAOKA
Keyword(s):  
Fiduciary Duty ◽  
Duty Of Care ◽  
Fundamental Nature ◽  
Duty Of Loyalty ◽  
Japanese Law ◽  
The Relationship ◽  
Conceptual Relationship ◽  
Corporate Trust

AbstractThe duty of loyalty has been notoriously vague since its introduction into Japanese law. The vagueness of the duty becomes particularly problematic because although the duty overlaps with the duty of care, a breach of each of the duties is subject to different remedial rules. By focusing primarily on duties owed by a trustee and agent, this article attempts to re-define the duty of loyalty and clarify the conceptual relationship between the duties of loyalty and care in Japanese law. The article first explains the current complexity in the scope and nature of the duty of loyalty, and the relationship between the duties of loyalty and care in corporate, trust, and agency laws in Japan. Second, borrowing ideas from Lionel Smith's account of the fundamental nature of the fiduciary duty, this article attempts to re-shape the concept of the duty of loyalty while properly differentiating it from the duty of care in Japanese law.

The Fiduciary Duty of Care

2019 ◽  
pp. 403-418 ◽  
Author(s):  
John C. P. Goldberg
Keyword(s):  
Tort Law ◽  
Fiduciary Duty ◽  
Duty Of Care ◽  
Private Law ◽  
Fiduciary Duties ◽  
Distinctive Features ◽  
Duty Of Loyalty

Fiduciary duties of care are at once familiar and strange. They partake of many of the characteristics of duties of care in other domains of private law, particularly tort law. But they also bear the distinctive marks of the fiduciary context. This chapter identifies two ways in which fiduciary duties of care tend to be distinct from tort duties of care. First, with some important exceptions, they are less demanding and less vigorously enforced. Second, breaches of the fiduciary duty of care can give rise to liability even if no injury results to the beneficiary. These distinctive features, the chapter argues, reflect judicial efforts to harmonize the fiduciary’s duty of care with her duty of loyalty. As such, they are defensible, even if not in all respects justified.

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.

scholarly journals Justifying Fiduciary Duties

2013 ◽  
Vol 58 (4) ◽  
pp. 969-1023 ◽  
Author(s):  
Paul B. Miller
Keyword(s):  
Private Law ◽  
Legal Capacity ◽  
Alternative Account ◽  
Fiduciary Duties ◽  
Legal Relationship ◽  
Core Set ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships

Fiduciary duties are critical to the integrity of a remarkable variety of relationships, including those between trustee and beneficiary, director and corporation, agent and principal, lawyer and client, doctor and patient, parent and child, and guardian and ward. Notwithstanding their variety, all fiduciary relationships are presumed to enjoy common characteristics and to attract a core set of demanding legal duties, most notably a duty of loyalty. Surprisingly, however, the justification for fiduciary duties is an enigma in private law theory. It is unclear what makes a relationship fiduciary and why fiduciary relationships attract fiduciary duties. This article takes up the enigma. It assesses leading reductivist and instrumentalist analyses of the justification for fiduciary duties. Finding them wanting, it offers an alternative account of the juridical justification for fiduciary duties. The author contends that the fiduciary relationship is a distinctive kind of legal relationship in which one person (the fiduciary) exercises power over practical interests of another (the beneficiary). Fiduciary power is a form of authority derived from the legal capacity of the beneficiary or a benefactor. The duty of loyalty is justified on the basis that it secures the exclusivity of the beneficiary’s claim over fiduciary power so understood.

Preventive Duties under Private and Public Law scilicet spei permultum sed rei paulum

2020 ◽  
Vol 2 (103) ◽  
pp. 51-71
Author(s):  
Dariusz Fuchs
Keyword(s):  
Contract Law ◽  
Legal Aspects ◽  
Public Law ◽  
Civil Code ◽  
Insurance Contract ◽  
Private Law ◽  
Public And Private ◽  
Private And Public ◽  
European Insurance ◽  
The Relationship

The article aims at discussing preventive obligations incumbent on the insurer and other entities of the insurance relationship, in particular on the policyholder. The analysis takes into account comparative legal aspects, and therefore refers to the Principles of European Insurance Contract Law (PEICL). The author emphasizes the evolution of the provision of Article 826 of the Civil Code, which has changed his views on the scope of the preventive obligation under insurance contract. He points out the possible differences of interpretation as to the scope of the prevention as well as the issue of the insurer's reimbursement of costs due to its implementation by the policyholder. What is more, the relationship between public and private law standards has been presented, with a particular focus on Article 826 of the Civil Code. Finally, de lege ferenda conclusions have been presented.

scholarly journals Constructive Geometric Models with Imaginary Objects

2020 ◽  
pp. short27-1-short27-9
Author(s):  
Denis Voloshinov ◽  
Alexandra Solovjeva
Keyword(s):  
Projective Geometry ◽  
Dimensional Space ◽  
Three Dimensional ◽  
Higher Order ◽  
Second Order ◽  
The Other ◽  
Significant Obstacle ◽  
The Relationship ◽  
Planar Drawing ◽  
Three Dimensional Space

The article is devoted to the consideration of a number of theoretical questions of projective geometry related to specifying and displaying imaginary objects, especially, conics. The lack of development of appropriate constructive schemes is a significant obstacle to the study of quadratic images in three-dimensional space and spaces of higher order. The relationship between the two circles, established by the inversion operation with respect to the other two circles, in particular, one of which is imaginary, allows obtain a simple and effective method for indirect setting of imaginary circles in a planar drawing. The application of the collinear transformation to circles with an imaginary radius also makes it possible to obtain unified algorithms for specifying and controlling imaginary conics along with usual real second-order curves. As a result, it allows eliminate exceptional situations that arise while solving problems with quadratic images in spaces of second and higher order.

14. Fiduciary Obligations

2019 ◽  
pp. 668-722
Author(s):  
Paul S Davies ◽  
Graham Virgo
Keyword(s):  
Best Interests ◽  
High Court ◽  
Fiduciary Obligations ◽  
Duty Of Loyalty ◽  
Fiduciary Relationships ◽  
Definition Of ◽  
High Court Of Australia ◽  
The Relationship ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with a definition of fiduciary relationships as presented by a retired judge of the High Court of Australia, Sir Anthony Mason. According to Mason, the relationship is a ‘concept in search of a principle’. Fiduciary relationships are voluntary, and some relationships, such as solicitor–client, are well recognized as fiduciary in nature. However, fiduciary relationships can arise in a wide variety of situations. A fiduciary owes a duty of loyalty to his or her principal, always acting in the best interests of said principal. Fiduciary obligations are strict, and any profits made by the fiduciary in breach must be disgorged to his or her principal. Where the profits are made from property that rightfully belonged to the trust, a constructive trust may be imposed upon the profits.

Analytical study of the vibrating double-sided quintic nonlinear nano-torsional actuator using higher-order Hamiltonian approach

2021 ◽  
pp. 146134842110320
Author(s):  
Gamal Mohamed Ismail ◽  
Mahmoud Abul-Ez ◽  
Hijaz Ahmad ◽  
Nadia Mohamed Farea
Keyword(s):  
Analytical Study ◽  
Homotopy Perturbation Method ◽  
Numerical Solutions ◽  
Approximate Solutions ◽  
Higher Order ◽  
Second Order ◽  
Hamiltonian Approach ◽  
Homotopy Perturbation ◽  
The Relationship ◽  
Better Than

In this work, we investigate and apply higher-order Hamiltonian approach (HA) as one of the novelty techniques to find out the approximate analytical solution for vibrating double-sided quintic nonlinear nano-torsional actuator. Periodic solutions are analytically verified, and consequently, the relationship between the initial amplitude and the natural frequency are obtained in a novel analytical way. The HA is then extended to the second-order to find more accurate results. To show the accuracy and applicability of the technique, the approximated results are compared with the homotopy perturbation method and numerical solution. According to the numerical results, it is highly remarkable that the second-order approximate solutions produce better than previously existing results and almost similar in comparing with the numerical solutions.

Part VI Rights—Structure and Scope, Ch.38 The Constitutionalisation of Indian Private Law

2016 ◽  
Author(s):  
Balganesh Shyamkrishna
Keyword(s):  
Constitutional Law ◽  
Tort Law ◽  
Contract Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Property Law ◽  
Private Law ◽  
The Public ◽  
The Past ◽  
The Relationship

This chapter examines the relationship between private law and constitutional law in India, with particular emphasis on tort law. It considers the Indian Supreme Court’s expansion of its fundamental rights jurisprudence over the past thirty years, as well as its effort to transcend the public law/private law divide. It also explains how the Court’s fusion of constitutional law and tort law has affected the independent efficacy, normativity, and analytical basis of equivalent private law claims in India. It argues that the Court’s efforts have only undermined the overall legitimacy of private law mechanisms in the country, and that this phenomenon is evident not only with respect to tort law, but also to a lesser degree in other areas of private law, such as contract law and property law.

Sign in / Sign up

Export Citation Format

Share Document