When Do Fiduciary Duties Arise?

Abstract

This article considers when fiduciary duties arise. I explain that fiduciary duties are simply particular terms which are expressed or implied into voluntary (contractual and non-contractual) undertakings. I consider the development and central role of the undertaking and show that the process of implication of terms is identical to the process involved in determining whether fiduciary duties arise in particular undertakings. I then examine each of the most well recognised fiduciary duties and show how those duties are sometimes described as “fiduciary” and sometimes described as “implied terms.”