Aspects of Loyalty

24 Pages Posted: 31 Jul 2017  

Lionel Smith

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law

Date Written: July 27, 2017

Abstract

One of the many current controversies around fiduciary obligations is whether the duty of care and skill owed by a fiduciary is properly called a fiduciary duty. Another is what is the content of the fiduciary duty of good faith, and whether it stands apart from the duty of loyalty, or rather is merely an aspect of it. This paper builds on recent work that identifies loyalty as a legal requirement for fiduciary decision-making, which is not, however, a Hohfeldian duty. This understanding calls for further investigation into the other aspects of the legal implementation of loyalty. In relation to both the duty of care and the duty of good faith, the paper asks why it might matter whether such duties were fiduciary duties, or duties of loyalty, and how we can properly answer these questions. It concludes that there are several aspects to how the law implements loyalty.

Keywords: fiduciary relationships, fiduciary obligations, duty of care, duty of loyalty, good faith, legal theory

JEL Classification: K00, K1, K10, K19

Suggested Citation

Smith, Lionel, Aspects of Loyalty (July 27, 2017). Available at SSRN: https://ssrn.com/abstract=3009894

Lionel Smith (Contact Author)

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law ( email )

3690 Peel Street
Montreal, Quebec H3A 1W9
Canada
514-398-4670 (Phone)
514-398-4659 (Fax)

HOME PAGE: http://www.mcgill.ca/law/about/profs/smith-lionel

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