Third-Party Liability for Breach of Fiduciary Duty in Malaysia

2020 ◽  
Author(s):  
Ying Khai Liew
Keyword(s):  
Fiduciary Duty ◽  
Third Party

A Corrective Justice Account of Disgorgement for Breach of Contract by Analogy to Fiduciary Remedies

2016 ◽  
Vol 29 (1) ◽  
pp. 149-190
Author(s):  
Anthony Robert Sangiuliano
Keyword(s):  
Attorney General ◽  
Fiduciary Duty ◽  
Third Party ◽  
Corrective Justice ◽  
Alternative Account ◽  
Breach Of Contract ◽  
House Of Lords ◽  
The Uk ◽  
Contractual Rights ◽  
Do So

A corrective justice account of a private law remedy attempts to the explain the remedy as giving back to the plaintiff something to which the plaintiff had a prior right that was breached by the defendant's receipt of that thing. It has proven challenging to explain how disgorgement for breach of contract is consistent with corrective justice. This remedy gives to the plaintiff any profit that a defendant received from a third party by breaching a contract with the plaintiff. In this paper, I critique two leading attempts to show how disgorgement for breach of contract is consistent with corrective justice. I argue that these attempts fail, and I suggest that a plausible corrective justice account of disgorgement should be based on something other than the nature of the contractual rights borne by a plaintiff. I then develop an alternative account based on an analogy between disgorgement for breach of contract and disgorgement for breach of fiduciary duty. To do so, I draw on recent scholarship on the consistency of disgorgement for breach of fiduciary with corrective justice and analyze the leading judicial decision on disgorgement for breach of contract by the UK House of Lords inAttorney General v. Blake. I argue that the fiduciary-based account can provide a plausible explanation for how disgorgement effectuates corrective justice by giving back to a plaintiff something to which he had an antecedent right that the defendant violated by profiting from a breach of contract.

scholarly journals When is a Stranger a Constructive Trustee - A Critique of Recent Decisions

1969 ◽  
pp. 453
Author(s):  
Susan Barkehall Thomas
Keyword(s):  
Supreme Court ◽  
Critical Analysis ◽  
Conceptual Development ◽  
Recent Trend ◽  
Current Approach ◽  
Fiduciary Duty ◽  
Third Party ◽  
The Supreme Court ◽  
The Law ◽  
Context Specific

This article explores the conceptual development of third party liability for participation in a breach of fiduciary duty. The author provides a critical analysis of the foundations of third party liability in Canada and chronicles the evolution of context-specific liability tests. In particular, the tests for the liability of banks and directors are developed in their specific contexts. The author then provides a reasoned critique of the Supreme Court of Canada's recent trend towards context-independent tests. The author concludes by arguing that the current approach is inadequate and results in an incoherent framework for the law of third party liability in Canada.

20. Personal Liability of Third Parties

2018 ◽  
Author(s):  
Graham Virgo
Keyword(s):  
Third Parties ◽  
Fiduciary Duty ◽  
The Other ◽  
Third Party ◽  
The Third ◽  
The Third Party ◽  
Personal Liability

This chapter examines the personal liability of third parties when there is a breach of trust or breach of fiduciary duty. It explains that there are two types of personal liability of third parties. One is receipt-based liability when a third party has received property in which the beneficiary or principal has an equitable proprietary interest and the other is accessorial liability when the third party has encouraged or assisted a breach of a trust or fiduciary duty. The elements of different causes of action relevant to receipt-based liability and accessorial liability are examined, notably the action for unconscionable receipt and the action of dishonest assistance. The controversial question of whether liability should be strict or fault-based is considered and, if the latter, the nature of the fault requirement.

ACCOUNT OF PROFITS FOR DISHONEST ASSISTANCE

2015 ◽  
Vol 74 (2) ◽  
pp. 222-233
Author(s):  
Peter Devonshire
Keyword(s):  
Fiduciary Duty ◽  
Third Party ◽  
The Status ◽  
Secondary Liability ◽  
Court Of Appeal

AbstractIn Novoship (UK) Ltd. v Nikitin, a unanimous Court of Appeal held that an account of profits can be granted against a third party who dishonestly assists a breach of fiduciary duty. This raises fundamental questions as to the status of gain-based relief in relation to secondary wrongs. An account of profits reflects the imperatives of fiduciary duty and it is questionable whether the remedy should be extended to a stranger to that relationship. This article will analyse the spectrum of secondary liability and suggest an appropriate demarcation of compensation and disgorgement.

20. Personal Liability of Third Parties

2020 ◽  
pp. 624-662
Author(s):  
Graham Virgo
Keyword(s):  
Third Parties ◽  
Fiduciary Duty ◽  
The Other ◽  
Third Party ◽  
The Third ◽  
The Third Party ◽  
Personal Liability

This chapter examines the personal liability of third parties when there is a breach of trust or breach of fiduciary duty. It explains that there are two types of personal liability of third parties. One is receipt-based liability when a third party has received property in which the beneficiary or principal has an equitable proprietary interest and the other is accessorial liability when the third party has encouraged or assisted a breach of a trust or fiduciary duty. The elements of different causes of action relevant to receipt-based liability and accessorial liability are examined, notably the action for unconscionable receipt and the action of dishonest assistance. The controversial question of whether liability should be strict or fault-based is considered and, if the latter, the nature of the fault requirement.

13. The relationships created by agency—the rights and liabilities of the parties

2017 ◽  
Author(s):  
Eric Baskind
Keyword(s):  
Fiduciary Duty ◽  
Third Party ◽  
Essential Information ◽  
The Third ◽  
Council Directive ◽  
The Third Party

Each Concentrate revision guide is packed with essential information, Key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the relationships created by agency, namely, the rights and liabilities of the agent, the principal, and the third party. It first explains disclosed agency as opposed to undisclosed agency with regards to the contract made by the agent, and then, after discussing the rights and liabilities of the principal and the third party, considers the rights of the agent against his principal, including remuneration, indemnity, and lien. The chapter examines the agent’s two kinds of duty to his principal-contractual duty and fiduciary duty-and discusses remedies for breach of fiduciary duty and how an agency may be terminated, as well as the effects of termination. It concludes by highlighting the provisions of the Commercial Agents (Council Directive) Regulations 1993.

29. Remedies against the trustee for breach of trust

2018 ◽  
Author(s):  
Robert Pearce ◽  
Warren Barr
Keyword(s):  
Fiduciary Duty ◽  
Third Party ◽  
Personal Liability

This chapter examines the nature of liability for breach of trust. Trusts impose obligations on the trustees, and the trustees can be held liable for breach of trust if their failure to meet the obligations imposed upon them causes a loss. The liability of a trustee for a breach of trust is a personal liability, and any remedy is available only against the trustee as an individual, and not against any specific assets. If the trustee in breach has died, their personal liability continues against their estate. There may be separate remedies in relation to any assets retained by the trustee or in the hands of a third party, and different remedies are also available for breach of fiduciary duty.

Fiduciary Principles in Surrogate Decision-Making

2019 ◽  
pp. 248-263
Author(s):  
Nina A. Kohn
Keyword(s):  
Health Care ◽  
Decision Making ◽  
Fiduciary Duty ◽  
Third Party ◽  
Duty Of Care ◽  
Surrogate Decision Making ◽  
Surrogate Decision Maker ◽  
Power Of Attorney ◽  
Surrogate Decision ◽  
The Individual

This chapter examines the fiduciary principles governing surrogate decision-making. Surrogate decision-making relationships arise when one person is appointed to make decisions for another, and are often used to make decisions for individuals with acute medical conditions or cognitive disabilities that make it difficult or impossible for the individuals to make decisions for themselves. A surrogate decision maker may be authorized by the individual for whom decisions are to be made or by a third party, including a court or a federal agency providing benefits to the individual. This chapter first considers how fiduciary duties are triggered in surrogate decision-making relationships and describes the requirements for appointment and acceptance by type of surrogate: guardians and conservators, agents acting under a power of attorney for finances or health care, and representative payees and other government fiduciaries. The discussion then turns to the surrogate decision maker’s duty of loyalty and duty of care, along with other fiduciary obligations. The chapter concludes with an overview of remedies available for a breach of fiduciary duty by a surrogate.

14. Directors’ liabilities for breach of duty

2021 ◽  
pp. 270-300
Author(s):  
Brenda Hannigan
Keyword(s):  
Civil Liability ◽  
Third Parties ◽  
Fiduciary Duty ◽  
Third Party ◽  
Breach Of Duty

This chapter focuses on the extent of a director’s civil liability for breach of fiduciary duty and the liability of third parties involved in some way in that breach of duty. One of the most important issues is the extent of a director’s liability to account. Liability can range from accounting for secret profits to claims for equitable compensation and from personal to proprietary claims. Often, a claim will be affected by limitation issues. It may be complicated by the involvement of third party accessories. Mitigation through reliance on indemnity provisions, insurance and by applying to the court for relief is also considered. The discussion covers: breach of fiduciary duty, liability of third parties, claims for negligence, and managing potential liabilities.

13. The relationships created by agency—the rights and liabilities of the parties

2019 ◽  
pp. 200-220
Author(s):  
Eric Baskind
Keyword(s):  
Fiduciary Duty ◽  
Third Party ◽  
Essential Information ◽  
The Third ◽  
Council Directive ◽  
The Third Party

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the relationships created by agency, namely, the rights and liabilities of the agent, the principal, and the third party. It first explains disclosed agency as opposed to undisclosed agency with regard to the contract made by the agent, and then, after discussing the rights and liabilities of the principal and the third party, considers the rights of the agent against his principal, including remuneration, indemnity, and lien. The chapter examines the agent’s two kinds of duty to his principal (contractual duty and fiduciary duty) and discusses remedies for breach of fiduciary duty and how an agency may be terminated, as well as the effects of termination. It concludes by highlighting the provisions of the Commercial Agents (Council Directive) Regulations 1993.

Sign in / Sign up

Export Citation Format

Share Document