Four Fiduciary Puzzles
EXPLORING PRIVATE LAW, E. Bant & M. Harding, eds., Cambridge University Press, 2010
32 Pages Posted: 26 Oct 2010 Last revised: 13 Nov 2010
Date Written: October 1, 2010
The nature and operation of fiduciary duties is an area bedeviled by difficulties, confusion and uncertainty. This chapter considers four puzzles which arise in relation to fiduciary duties. The four puzzles are as follows: 1. Which fiduciary duties can be excluded by agreement? 2. When do fiduciary obligations come to an end? 3. What is the proper law to be applied to fiduciary duties where they arise in a cross-border context? 4. What is the level of fault required before a person can be liable for inducing or assisting in a breach of fiduciary duty? This chapter begins with the premise that fiduciary duties are voluntary undertakings and shows how that analysis helps to understand and provide answers to four contemporary puzzles in the law concerning fiduciary obligations. The point I make in this chapter is that each of the four conundra can be easily understood once we see fiduciary duties as duties which are expressed or implied into voluntary undertakings. The chapter begins with a brief introduction to the nature of fiduciary duties as terms expressed or implied into voluntary undertakings before showing how this conception explains the pattern of development of the law in each of the four areas.
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By Orin S. Kerr