Fiduciary obligation essay

As is well-known, law has both positive and normative aspects; it is authoritatively articulated, and insofar as it purports to direct conduct, it makes a claim of obedience that stands in need of justification.

Fiduciary obligation essay

Supposing fiduciary duties are not contractual, might they nonetheless share with contractual duties a normative foundation in consent? Each is responsible for securing their interests in dealings with the other. On ne sait pas exactement ce qui rend une relation fiduciaire et pourquoi ces relations attirent des obligations fiduciaires. Supposing that the nature of the fiduciary relationship is such that it does somehow engage the public interest, it remains unclear how fiduciary duties advance the public interest. It is time to move from thinking of fiduciary duties as a matter of status to understanding them as based upon consent. Second, the list of factors said to support the implication of fiduciary duties raises the question of the significance of the fiduciary relationship to fiduciary liability. These efforts may enable us to entertain hypothetical arguments that breach of fiduciary duty should be considered a tort.

Finding them wanting, it offers an alternative account of the juridical justification for fiduciary duties. Trustees, executors, and agents are fiduciaries of their beneficiaries, testators, and principals. The argument from property also draws attention to important aspects of fiduciary liability.

history of fiduciary duty

Third, the argument does not account well for the content of fiduciary duties. The most important descriptive problem is the now-familiar difficulty of accounting for the significance of the fiduciary relationship to fiduciary liability.

To that end, the duty of loyalty strictly forbids conflicts of interest and conflicts of duty, on pain of powerful remedies that strip fiduciaries of any gains realized in breach.

Fiduciary relationship equity

Several theorists have attempted to articulate the core aims of tort law. Most reductivist and instrumentalist argument capitalizes on important insights about the juridical character of fiduciary liability. Parents and guardians are fiduciaries of their children and wards. It also has different objects e. Fiduciary relationships may alternatively be established by non-contractual agreement, by unilateral undertaking, or by legislative or judicial decree. Clearly, fiduciary duties are pervasive in modern civil society. The paradigmatic fiduciary relationship between trustee and beneficiary is a misleading paradigm in that respect. Where the obligation is juridical as is the case for common law and equitable obligations , fit is a function of the capacity of the reasons given to explain the juridical character of the obligation. The Argument from Morality It is sometimes said, without much elaboration or specificity, that fiduciary law is concerned with ensuring that fiduciaries behave morally [82] and that the duty of loyalty requires fiduciaries to act altruistically. More particularly, they are an express or implied term of an engagement accepted by the fiduciary. First, it fails to account for a deep inconsistency in presuppositions about the rightful conduct of people in contractual and fiduciary relationships, respectively.

Each is responsible for securing their interests in dealings with the other.

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fiduciary duty Essay