Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties
Autor Matthew Conaglenen Limba Engleză Paperback – 24 aug 2011
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Specificații
ISBN-13: 9781849462143
ISBN-10: 1849462143
Pagini: 332
Dimensiuni: 156 x 234 x 26 mm
Greutate: 0.47 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Locul publicării:London, United Kingdom
ISBN-10: 1849462143
Pagini: 332
Dimensiuni: 156 x 234 x 26 mm
Greutate: 0.47 kg
Editura: Bloomsbury Publishing
Colecția Hart Publishing
Locul publicării:London, United Kingdom
Notă biografică
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.
Cuprins
1 Prologue 2 Points of Departure I. Form of Analysis II. Subject Matter of Analysis A. Historical Analogies B. Modern Approach i. Genesis and Gestation ii. Justification 13 Peculiarly Fiduciary Duties I. Duty to Perform the Task Undertaken II. Duties of Care and Skill III. Conflict and Profit Principles IV. Good FaithV. Proper Purposes Doctrine VI. Fiduciary Powers VII. Duty to Act in Good Faith in the Principal's Best Interests 4 Fiduciary LoyaltyI. Introduction II. Subsidiary Prophylactic Protection A. Protective Function B. Prophylaxis C. Subsidiarity III. Remedies A. Rescission and Profit-Stripping i. Rescission ii. Accounts of Profits and Constructive Trusts iii. Connection with Fiduciary Protection B. Compensation for Loss i. Availability ii. Causation and Loss iii. Connection with Fiduciary Protection IV. Critics 5 Fiduciary Doctrine and Morality I. General Observations II. The Argument from History III. The Profit Principle A. Existence of the Profit Principle B. Relationship to the Conflict Principle IV. The Fair-Dealing Rule A. The Self-Dealing Rule B. The Fair-Dealing Rule i. References to 'Fairness' ii. Non-Critical Relevance of 'Fairness' iii. Fairness as Evidence of Full Disclosure iv. Relationship to the Self-Dealing Rule and Conflict Principle V. The Corporate Opportunity Doctrine 6 Conflicts between Inconsistent Duties I. Origins II. Content and Function A. Potential Conflicts B. Actual Conflicts C. Inhibition i. Pattern of Liability ii. Function III. Remedies A. Stopping Further Action B. Rescission of Resultant Transaction C. Forfeiture of Fees and Other Profits i. Fees Paid by the Non-claimant Principal ii. Fees Paid by the Claimant Principal D. Equitable Compensation i. Availability and Function ii. Identifying Loss iii. Contributory Fault 7 Implications I. Scope of Fiduciary Duties II. The Vital Nature of Non-fiduciary Duties A. Consequence of the Protective Function B. Potential Counter-examplesi. Preventing Circumvention of Fiduciary Protection ii. Solicitors Cases iii. Negotiations towards Joint Ventures iv. Bare Trusts III. Proscriptive Duties IV. Authorisation V. Critiques of Fiduciary Doctrine 8 Conceptual Affinities I. Contract and Fiduciary Doctrine II. Torts and Fiduciary Doctrine A. Fiduciary Doctrine and Negligence B. Surrogacy for Tort Law Generally i. Cause of Action Surrogacy ii. Civil Wrongs III. Undue Influence and Confidence A. Undue Influence B. Confidence 9 The Incidence of Fiduciary Duties I. Academic Commentators A. Acting on Behalf of Another B. Discretion and Power C. Reasonable Expectations D. Limited Access II. Turning Theory into Practice A. Judicial Applications B. Relevant Considerations 10 Epilogue
Recenzii
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.
...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.
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.
[A] finely balanced examination of the fiduciary doctrine from both a conceptual and a practical perspective.
...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.
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.
[A] finely balanced examination of the fiduciary doctrine from both a conceptual and a practical perspective.
Descriere
Fiduciary Loyalty presents a comprehensive analysis of the nature and function of fiduciary duties.