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Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties [Kõva köide]

  • Formaat: Hardback, 332 pages, kõrgus x laius x paksus: 234x156x26 mm, kaal: 666 g
  • Ilmumisaeg: 08-Jan-2010
  • Kirjastus: Hart Publishing
  • ISBN-10: 1841135836
  • ISBN-13: 9781841135830
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Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary DutiesSuurem pilt
  • Formaat: Hardback, 332 pages, kõrgus x laius x paksus: 234x156x26 mm, kaal: 666 g
  • Ilmumisaeg: 08-Jan-2010
  • Kirjastus: Hart Publishing
  • ISBN-10: 1841135836
  • ISBN-13: 9781841135830
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9781841135830.html
Märksõnad:
Winner of the second SLS Peter Birks Prize for Outstanding Legal Scholarship 2010. Fiduciary Loyalty presents a comprehensive analysis of the nature and function of fiduciary duties. The concept of loyalty, which lies at the heart of fiduciary doctrine, is a form of protection which is designed to enhance the likelihood of due performance of non-fiduciary duties, by seeking to avoid influences or temptations that may distract the fiduciary from providing such proper performance. In developing this position, the book takes the novel approach of putting to one side the difficult question of when fiduciary duties arise in order to focus attention instead on what fiduciary duties do when they are owed. The issue of when fiduciary duties arise can then be returned to, and considered more profitably, once a clear view has emerged of the function that such duties perform. The analysis advanced in the book has both practical and theoretical implications for understanding fiduciary doctrine. For example, it provides a sound conceptual footing for understanding the relationship between fiduciary and non-fiduciary duties, highlighting the practical importance of analysing both forms of duties carefully when considering fiduciary claims. Further, it explains a number of tenets within fiduciary doctrine, such as the proscriptive nature of fiduciary duties and the need to obtain the principal's fully informed consent in order to avoid fiduciary liability. Understanding the relationship between fiduciary and non-fiduciary duties also provides a solid foundation for addressing issues concerning compensatory remedies for their breach and potential defences such as contributory fault. The distinctive purpose that fiduciary duties serve also provides a firm theoretical basis for maintaining their separation from other forms of civil obligation, such as those that arise under the law of contracts and of torts.

Arvustused

This carefully argued monograph takes a novel and conceptually subtle approach to explaining the significance of fiduciary loyalty. It represents a sophisticated attempt to explain how more detailed rules can be synthesized in an approach that focuses on fiduciary law's underlying normative imperative of loyalty, both in terms of its content and its systemic significance. This monograph is a superb example of doctrinal private law writing, a fact recognized by the award of the SLS Peter Birks Second Prize for Outstanding Legal Scholarship 2010. IT will be of interest to academics and some practitioners seeking a deeper understanding of the formative forces of fiduciary law, and it would be a strong addition to a reading list for advanced students. For academics with an interest in fiduciary law, whether we agree with Dr Conaglen's thesis or not ... it is a sine qua non to which we must all respond. Daniel J Carr The Edinburgh Law Review Volume 15, 2011 ...the apparent product of mature reflection and is a clearly and cogently expressed refutation of the writings of Langbein and other such theorists...This is the first work in many years which covers this important and difficult field. It is bound to be established as a first port of call for all branches of the legal profession when grappling with fiduciary law. Justice W.M.C Gummow (2010) 84 Australian Law Journal 27 This in an outstanding book that represents the culmination of ten years of research and reflection. It is a work of exceptional scholarship that provides much insight and clarity into the theoretical and practical operation of fiduciary doctrine and, in particular, the fiduciary obligation of loyalty. Dr Conaglen provides a comprehensive and coherent analysis of the nature and function of the fiduciary duties... [ a] most interesting and illuminating book. David Hayton Trusts and Estates Law and Tax Journal Issue 117, 2010 [ A] finely balanced examination of the fiduciary doctrine from both a conceptual and a practical perspective. Anthony Lo Surdo Australian Banking and Finance Law Bulletin October 2010

Muu info

Runner-up for Society of Legal Scholars Prize for Outstanding Legal Scholarship 2010 (UK).
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. Modem 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
61
A. Protective Function
62
B. Prophylaxis
67
C. Subsidiarity
75
III. Remedies
76
A. Rescission and Profit-Stripping
76
i. Rescission
76
ii. Accounts of Profits and Constructive Trusts
79
iii. Connection with Fiduciary Protection
80
B. Compensation for Loss
85
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
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.