Investment Recommendations and Fiduciary Obligations

2015 ◽  
pp. 83-87
Keyword(s):  
Fiduciary Obligations

The Uses and Abuses of Constructive Trusts: The Experience of England and Wales

1997 ◽  
Vol 1 (4) ◽  
pp. 437-463 ◽  
Author(s):  
Charles Harpum
Keyword(s):  
England And Wales ◽  
Central Thesis ◽  
Amorphous Nature ◽  
Fiduciary Obligations ◽  
English Law ◽  
Law Commission

This paper, which was first given on 19 October 1996 at a seminar on constructive trusts organised by the Universities of Edinburgh and Strathclyde with the Scottish Law Commission, examines the role that constructive trusts play in English law. It explains the amorphous nature of such trusts, how they are rooted in concepts of equity and conscience, and how they are often imposed in accordance with equity's traditional grounds for intervention. The central thesis of the paper is that a constructive trust, when imposed, will cause the trustee to become subject to one or more fiduciary obligations or incidents. One situation in which this is not the case— where a constructive trust is employed to impose an encumbrance on a transferee of property—is criticised. There is also a critique of the recourse to equitable maxims as a reason for the imposition of constructive trusts. The paper concludes with some reflections on the likely path of development of constructive trusts in English law and whether they ought to be more widely received into Scots law.

scholarly journals Fiduciary Law and the Constructive Trust: Perfecting the Fiduciary Undertaking

2012 ◽  
Vol 49 (3) ◽  
pp. 655 ◽  
Author(s):  
Ciara Toole
Keyword(s):  
Supreme Court ◽  
Fiduciary Duty ◽  
Supreme Court Of Canada ◽  
Best Interest ◽  
The Supreme Court ◽  
Fiduciary Obligations ◽  
Breach Of Duty ◽  
Fiduciary Relationships

Two recent unanimous decisions from the Supreme Court of Canada in Galambos v Perez and Alberta v Elder Advocates of Alberta Society have narrowed and refreshed the requirements for recognizing fiduciary relationships and obligations. All fiduciary obligations must be founded by an undertaking, either express or implied, on the part of the fiduciary to act in the best interest of the beneficiary. At the heart of the fiduciary obligation, the undertaking of a fiduciary may also serve as a foundation for the goals of fiduciary accountability. The developing “Galambos approach” remains incomplete in its application in this regard. In the spirit of Galambos and Elder Advocates, I propose that the undertaking of the fiduciary can provide principled guidance in the availability of gain-based relief for breach of fiduciary duty. Particularly, I suggest that the imposition of a constructive trust as proprietary gain-based relief may be rationalized under the objective of perfecting or enforcing the fiduciary undertaking. To demonstrate my proposal, I investigate three example undertakings and breaches of fiduciary duty in which the fiduciary acquires property through the breach of duty. By grounding this overall discussion towards a conceptual remedial goal of enforcing the fiduciary’s undertaking, Galambos may spark the development of a principled approach to understanding both the making and the breach of fiduciary obligations.

scholarly journals The Fiduciary Duties of Joint Venture Parties – When do They Arise and What Do They Comprise?

2011 ◽  
Vol 42 (1) ◽  
pp. 117 ◽  
Author(s):  
Jane Knowler ◽  
Charles Rickett
Keyword(s):  
Joint Ventures ◽  
Joint Venture ◽  
Case Law ◽  
The Other ◽  
Common Goal ◽  
Fiduciary Duties ◽  
Fiduciary Obligations ◽  
Australian Case

Joint Ventures are often used by parties in commercial enterprises where parties seek to achieve a common goal. One issue which is increasingly contentious is the extent to which, if any, joint venture parties owe each other fiduciary obligations. This paper refutes, as a dangerous heresy, the idea that joint venture relationships are discrete legal relationships that are inherently fiduciary in nature. The majority of self-styled "joint ventures" are, invariably, nothing more in legal terms than contracts. If parties are going to be bound by fiduciary duties, over and above the contractual duties they owe each other, this will only be so by virtue of the particular arrangement they have entered into which, on a thorough examination of the facts, is found to require each party to give unstinting loyalty to the other. Recent Australian case law bears this out.

11. Duty of care, skill, and independent judgement

Company Law ◽  
2018 ◽  
Author(s):  
Brenda Hannigan
Keyword(s):  
Standard Of Care ◽  
Duty Of Care ◽  
Fiduciary Obligations

In addition to their fiduciary obligations, directors are subject to duties of care and skill. This chapter discusses the statutory standard of care, skill, and diligence; the content of the duty; and the duty to exercise independent judgement.

14. Fiduciary Obligations

2013 ◽  
pp. 642-700
Author(s):  
Paul S Davies ◽  
Graham Virgo ◽  
EH Burn
Keyword(s):  
Fiduciary Obligations

scholarly journals Credit Advisers, Consumer Credit and Equitable Fiduciary Obligations

2019 ◽  
Vol 47 (1) ◽  
pp. 64-90
Author(s):  
Simone Degeling ◽  
Jessica Hudson
Keyword(s):  
Financial Markets ◽  
Conflict Of Interest ◽  
Consumer Credit ◽  
Financial Intermediaries ◽  
Fiduciary Obligations ◽  
Commission Report

Consumers use financial intermediaries such as brokers and other credit advisers to navigate complex financial markets and to provide guidance on credit products. In 2017 ASIC reported that ‘[b]rokers … are responsible for arranging … half of all home loans in Australia’ (Australian Securities & Investments Commission, Report 516: Review of Mortgage Broker Remuneration (2017) 8 [18]). The National Consumer Credit Protection Act 2009 (Cth) (‘Credit Regime’) regulates the conduct of such advisers including requiring disclosure of fees and some commissions. The Credit Regime also permits conflicts between the interest of the adviser and the client, provided that the adviser has in place ‘adequate arrangements to ensure … [that the client is] … not disadvantaged by any conflict of interest’ and that the conflict does not breach the adviser’s obligation to act ‘efficiently, honestly and fairly’. This article demonstrates that equitable fiduciary obligations also operate to regulate the conduct of the adviser in his or her dealings with the client. Such conflict and other conduct may breach any equitable fiduciary obligation thus exposing the adviser to equitable remedies. Equitable fiduciary obligations may thus be an as yet under-exploited avenue of protection for consumers and a concomitant zone of compliance risk for those subject to the Credit Regime.

Equity Property and Obligation

2005 ◽  
Author(s):  
Sarah Worthington
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Turn Of The Century ◽  
Fiduciary Obligations ◽  
Proper Definition ◽  
The Common ◽  
Legal Concepts ◽  
Equity Property

Equitable property, especially as illustrated in the trust, and equitable obligations, especially fiduciary obligations, are without precise civil law counterparts. This ought to have marked these areas out as prime candidates for innovative and inventive common law and comparative scholarship. Instead, even at the turn of the century, modern equity scholarship is still overwhelmingly devoted to doctrinal analysis that seeks simply to define and understand these equitable concepts. The legal concepts underpinning equitable property and equitable obligation are difficult, and proper definition is important to coherent development of the law's practices. This article discusses the following: ideas of equitable property, fiduciary law scholarship, and the common law-equity divide.

Lionel Cohen Lecture: The Content of Fiduciary Obligation

2000 ◽  
Vol 34 (1) ◽  
pp. 3-38 ◽  
Author(s):  
Peter Birks
Keyword(s):  
Fiduciary Duty ◽  
Clear Picture ◽  
Breach Of Contract ◽  
The Third ◽  
The Core ◽  
Fiduciary Obligations ◽  
Do So

Fiduciary obligations form a sub-set of those primary obligations the breach of which constitutes a civil wrong. Only by starting from the obligation of the express trustee can one establish a clear picture of their content. ‘Fiduciary’ is one vehicle for exporting incidents of the express trust by analogy. The trustee's obligation differs from other primary obligations in the degree of altruism which it requires. The trustee must not only take care of the interests of another but must do so disinterestedly. This is the third and highest degree of legally obligatory altruism. The question then arises whether the trustee's obligation mutates when imposed on non-trustees. The core obligation never changes. A sub-problem then emerges: Can negligence be a breach of any one of three different primary duties and hence three different wrongs: breach of contract, tort, and breach of fiduciary duty? The last section of the lecture looks for the best way to dispel that illusion.

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