Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties

Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties

by Matthew Conaglen

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Product Details

ISBN-13: 9781841135830
Publisher: Hart Publishing
Publication date: 01/08/2010
Pages: 332
Product dimensions: 6.40(w) x 9.20(h) x 1.10(d)

About the Author


Matthew Conaglen is a Reader in Equity and Trusts at the University of Cambridge and a Fellow of Trinity Hall. He is an Academic Member of the Chancery Bar Association and has practised as a barrister and solicitor in New Zealand. His PhD at Cambridge, on the nature and function of fiduciary duties, was awarded the Yorke Prize and he has published extensively in that area and in others.

Table of Contents

Preface v

Table of Cases xiii

Table of Legislation xliii

1 Prologue 1

2 Points of Departure 7

I Form of Analysis 7

II Subject Matter of Analysis 11

A Historical Analogies 11

B Modern Approach 16

i Genesis and Gestation 16

ii Justification 18

3 Peculiarly Fiduciary Duties 32

I Duty to Perform the Task Undertaken 32

II Duties of Care and Skill 35

III Conflict and Profit Principles 39

IV Good Faith 40

V Proper Purposes Doctrine 44

VI Fiduciary Powers 50

VII Duty to Act in Good Faith in the Principal's Best Interests 54

4 Fiduciary Loyalty 59

I Introduction 59

II Subsidiary Prophylactic Protection 59

A Protective Function 61

B Prophylaxis 62

C Subsidiarity 67

III Remedies 75

A Rescission and Profit-Stripping 76

i Rescission 76

ii Accounts of Profits and Constructive Trusts 76

iii Connection with Fiduciary Protection 79

B Compensation for Loss 80

i Availability 85

ii Causation and Loss 90

iii Connection with Fiduciary Protection 94

IV Critics 97

5 Fiduciary Doctrine and Morality 106

I General Observations 107

II The Argument from History 109

III The Profit Principle 113

A Existence of the Profit Principle 114

B Relationship to the Conflict Principle 120

IV The Fair-Dealing Rule 125

A The Self-Dealing Rule 126

B The Fair-Dealing Rule 128

i References to 'Fairness' 129

ii Non-Critical Relevance of 'Fairness' 130

iii Fairness as Evidence of Full Disclosure 135

iv Relationship to the Self-Dealing Rule and Conflict Principle 138

V The Corporate Opportunity Doctrine 139

6 Conflicts between Inconsistent Duties 142

I Origins 143

II Content and Function 146

A Potential Conflicts 147

B Actual Conflicts 149

C Inhibition 150

i Pattern of Liability 152

ii Function 153

III Remedies 158

A Stopping Further Action 158

B Rescission of Resultant Transaction 159

C Forfeiture of Fees and Other Profits 161

i Fees Paid by the Non-claimant Principal 161

ii Fees Paid by the Claimant Principal 162

D Equitable Compensation 164

i Availability and Function 164

ii Identifying Loss 165

iii Contributory Fault 172

7 Implications 177

I Scope of Fiduciary Duties 177

II The Vital Nature of Non-fiduciary Duties 185

A Consequence of the Protective Function 185

B Potential Counter-examples 188

i Preventing Circumvention of Fiduciary Protection 188

ii Solicitors Cases 190

iii Negotiations towards Joint Ventures 195

iv Bare Trusts 197

III Proscriptive Duties 201

IV Authorisation 204

V Critiques of Fiduciary Doctrine 208

8 Conceptual Affinities 214

I Contract and Fiduciary Doctrine 214

II Torts and Fiduciary Doctrine 221

A Fiduciary Doctrine and Negligence 222

B Surrogacy for Tort Law Generally 228

i Cause of Action Surrogacy 228

ii Civil Wrongs 229

III Undue Influence and Confidence 236

A Undue Influence 236

B Confidence 241

9 The Incidence of Fiduciary Duties 245

I Academic Commentators 246

A Acting on Behalf of Another 246

B Discretion and Power 247

C Reasonable Expectations 249

D Limited Access 251

II Turning Theory into Practice 254

A Judicial Applications 254

B Relevant Considerations 260

10 Epilogue 269

Index 277

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