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.

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.

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.

Property Rights, Fiduciary Duties, and the Control of Assets

2018 ◽  
Author(s):  
Aruna Nair
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Right ◽  
Formal Structure ◽  
Fiduciary Duties ◽  
Legal Power ◽  
The Law ◽  
Fiduciary Relationships ◽  
Relationship Of

This chapter examines the law governing the availability of claims to traceable proceeds. It argues that the language used in the case law—which uses the terminology of property rights and of fiduciary relationships—cannot fully explain the law, since such claims are often available in the absence of fiduciary duties and are not available to holders of many types of property right. It argues that such claims instead presuppose a relationship of ‘control of assets’: where the defendant has a legal power to deal with some asset, correlating to a vulnerability to a loss of rights in that asset on the part of the claimant, and coupled with a duty not to exercise the power. It argues that relationships that have this formal structure also share normative characteristics that justify the subordination of defendant autonomy that has been shown to be at the heart of the tracing concept.

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.

Fiduciary Law as Equity’s Child

Equity ◽  
2018 ◽  
pp. 113-151
Author(s):  
Irit Samet
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Active Role ◽  
Fiduciary Duties ◽  
Contractual Obligation ◽  
The Law ◽  
Duty Of Loyalty ◽  
Contractual Obligations ◽  
The Relationship ◽  
The Way

This chapter challenges the argument that one of Equity’s most distinctive doctrines, fiduciary law, must be fused with a common law doctrine—the law of contract. In particular, it highlights the disadvantages of transforming the equitable duty of loyalty into an ordinary contractual obligation. The chapter first considers the ‘contractarian’ interpretation of fiduciary law according to which fiduciary duties are no more than a species of contractual obligations before explaining why, in contrast with the contractarian argument, Equity was right in claiming that the fiduciary relationship was essentially different from contract. After making the case of why fiduciary law should be treated as a sui generis equitable doctrine, the chapter examines two features of equitable fiduciary law that will change dramatically if the fusion suggestion is adopted (the language in which it is set and the way into the relationship) and shows the adverse consequences of moving in that direction. It concludes with the contention that the concept of ‘conscience’ still has an active role to play in the legal reasoning about fiduciaries.

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.

Managers’ Double Fiduciary Duty: to Stakeholders and to Freedom

2002 ◽  
Vol 12 (2) ◽  
pp. 189-214 ◽  
Author(s):  
Allen Kaufman
Keyword(s):  
Regulatory Framework ◽  
Fiduciary Duty ◽  
Fiduciary Duties ◽  
Professional Code ◽  
Duty Of Loyalty

Abstract:In providing an ethical guide for managers, the Clarkson Principles offer one part of a possible professional code, namely, that managers have a fiduciary duty—a duty of loyalty of the corporation’s stakeholders. However, the Clarkson Principles contain little advise for managers when they act politically to fashion the regulatory framework in which stakeholders negotiate. When managers participate in these arenas, I argue that they ought to assume a second fiduciary duty—a duty of loyalty to fair bargaining. Where the first duty of loyalty pertains to the firm’s “constituents,” the second refers to the firm’s “constitution”—to the rules by which the firm’s stakeholders bargain and to the background conditions that distribute advantages. Together, these two fiduciary duties establish the large good—development as freedom—from which a managerial profession can mature.

scholarly journals Legal capacity in the context of the distinctiveness of public and private law

2018 ◽  
Vol 5 (4) ◽  
pp. 319-328
Author(s):  
Константин Сигалов ◽  
Konstantin Sigalov ◽  
Игорь Кольжанов ◽  
Igor Kol’zhanov
Keyword(s):  
Private Law ◽  
Legal Capacity ◽  
Public And Private
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