The Strict Character of Fiduciary Liability

Abstract

A number of commentators have challenged the strict character of fiduciary liability. They prefer a contextual assessment of the circumstances of the parties. Their arguments, however, lack substance. They fail to demonstrate any social erosion of the policy foundation for the strict ethic. They also fail to account for the capacity of the parties to contract out of fiduciary liability. Their analyses ultimately have the unintended consequence of confirming the prudence of the conventional position.

Keywords: duty of loyalty, fiduciary, strict liability, opportunism, consent, limited access