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Vol 21 No 11 Nov/Dec 2016

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


ISBN13: 9781841135830
Published: January 2010
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00
Paperback edition , ISBN13 9781849462143



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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.

Subjects:
Equity and Trusts
Contents:
Chapter 1 Prologue
Chapter 2 Points of Departure
Chapter 3 Peculiarly Fiduciary Duties
Chapter 4 Fiduciary Loyalty
Chapter 5 Fiduciary Doctrine and Morality
Chapter 6 Conflicts between Inconsistent Duties
Chapter 7 Implications
Chapter 8 Conceptual Affinities
Chapter 9 The Incidence of Fiduciary Duties
Chapter 10 Epilogue
Index.