A fiduciary duty is a legal Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and or ethical relationship of confidence or trust A trusted party is presumed to seek to fulfill policies, ethical codes, law and their previous promises regarding the management of money or property between two or more parties A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, and recreation. A party will typically feature food and beverages, and often music and dancing as well. Parties are a great way to meet new friends, most commonly a fiduciary and a principal. One party, for example a corporate trust company or the trust department of a bank, holds a fiduciary relation or acts in a fiduciary capacity to another, such as one whose funds are entrusted to it for investment. In a fiduciary relation one person, in a position of vulnerability, justifiably reposes confidence, good faith Good faith, or in Latin bona fides , is good, honest intention (even if producing unfortunate results) or belief. In law, it is the mental and moral state of honesty, conviction as to the truth or falsehood of a proposition or body of opinion, or as to the rectitude or depravity of a line of conduct. This concept is important in law, especially, reliance and trust in another whose aid, advice or protection is sought in some matter. In such a relation good conscience requires one to act at all times for the sole benefit and interests of another, with loyalty to those interests.

“ A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.[1] ”

A fiduciary duty[2] is the highest standard of care In tort law, the standard of care is the degree of prudence and caution required of an individual who is under a duty of care at either equity or law. A fiduciary (abbreviation fid) is expected to be extremely loyal to the person to whom he owes the duty (the "principal In commercial law, a principal is a person–legal or natural–who authorizes an agent to act to create one or more legal relationships with a third party. This branch of law is called agency and relies on the common law proposition qui facit per alium, facit per se"): he must not put his personal interests before the duty, and must not profit from his position as a fiduciary, unless the principal consents. The word itself comes originally from the Latin Latin is an Italic language originally spoken in Latium and Ancient Rome. With the Roman conquest, Latin was spread to countries around the Mediterranean, including a large part of Europe. Romance languages such as Aragonese, Corsican, Catalan, French, Italian, Portuguese, Romanian, Sardinian, Spanish and others, are descended from Latin, while fides, meaning faith, and fiducia, trust.

In English The area now called England has been settled by people of various cultures for about 35,000 years, but it takes its name from the Angles, one of the Germanic tribes who settled during the 5th and 6th centuries. England became a unified state in AD 927, and since the Age of Discovery, which began during the 15th century, has had a significant common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different the fiduciary relation is arguably the most important concept within the portion of the legal system known as equity Equity is the name given to the set of legal principles, in jurisdictions following the English common law tradition, which supplement strict rules of law where their application would operate harshly. In civil legal systems, broad "general clause" allow judges to have similar leeway in applying the code. In the United Kingdom, the Judicature Acts The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts.The first two acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 (38 & 9 Vict c 77), before another series of amending acts (12 in all by 1899) merged the courts of equity A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it (historically based in England's Court of Chancery The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of lunatics and the guardianship of infants. Its) with the courts of common law, and as a result the concept of fiduciary duty also became usable in common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different courts.

When a fiduciary duty is imposed, equity requires a stricter standard of behavior than the comparable tortious Tort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of contractual obligations. A person who suffers legal damages may be able to use tort law to receive compensation from someone who is legally responsible, or liable, for those injuries. Generally speaking, tort law defines what constitutes a legal duty of care In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The plaintiff (pursuer in Scotland) must be able to show a at common law. It is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where his fiduciary duty conflicts with another fiduciary duty, and a duty not to profit from his fiduciary position without express knowledge and consent. A fiduciary cannot have a conflict of interest A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other. It has been said that fiduciaries must conduct themselves "at a level higher than that trodden by the crowd"[3] and that "[t]he distinguishing or overriding duty of a fiduciary is the obligation of undivided loyalty."[4]

Contents

Duty in different jurisdictions

Different jurisdictions regard fiduciary duties in different lights. Canadian law The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law. Both legal systems are subject to the Constitution of Canada, for example, has developed a more expansive view of fiduciary obligation, more so than American law The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of constitutional acts of Congress, constitutional[citation needed], while Australian law The law of Australia consists of the Australian common law , federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories. The most important law of Australia is the Constitution of Australia, which describes Australia's system of constitutional monarchy, and forms the basis for and British law The United Kingdom has three legal systems. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law elements dating back to the High Middle Ages. The have developed more conservative approaches than either the USA or Canada. The law expressed here follows the general body of elementary fiduciary law found in most common law jurisdictions; for in-depth analysis of particular jurisdictional idiosyncrasies please consult primary authorities within the relevant jurisdiction. This is especially true in the area of Labor and Employment law. In Canada a fiduciary has obligations to the employer even after the employment relationship is terminated, whereas in the U.S. the employment and fiduciary relationships terminate together.

In SEC v. Chenery Corporation 318 U.S. 80 (1943), Frankfurter J said,

“ To say that a man is a fiduciary only begins the analysis; it gives direction to further inquiry. To whom is he a fiduciary? What obligations does he owe as a fiduciary? In what respect has he failed to discharge these obligations? And what are the consequences of his deviation from his duty? ”

Relationships

The most common circumstance where a fiduciary duty will arise is between a trustee Trustee is a legal term for a holder of property on behalf of a beneficiary. A trust can be set up either to benefit particular persons, or for any charitable purposes : typical examples are a will trust for the testator's children and family, a pension trust (to confer benefits on employees and their families), and a charitable trust. In all, whether real or juristic, and a beneficiary A "beneficiary" in the broadest sense is a natural person or other legal entity who receives money or other benefits from a benefactor. For example: The beneficiary of a life insurance policy, is the person who receives the payment of the amount of insurance after the death of the insured. The beneficiaries of a trust are the persons. The trustee to whom property is legally committed is the legal—i.e., common law—owner of all such property. The beneficiary, at law, has no legal title to the trust In common law legal systems, a trust is a relationship whereby property is managed by one person (or persons, or organizations) for the benefit of another. A trust is created by a settlor (or feoffor to uses), who entrusts some or all of their property to people of their choice (the trustees or feoffee to uses). The trustees hold legal title to; however, the trustee is bound by equity to suppress his own interests and administer the property only for the benefit of the beneficiary. In this way, the beneficiary obtains the use Use, as a term in real property law of common law countries, amounts to a recognition of the duty of a person, to whom property has been conveyed for certain purposes, to carry out those purposes of property without being its technical owner.

Others, such as corporate directors Duties of directors of corporations are a central part of corporate law and corporate governance and describe which obligations people owe to companies by virtue of their position as directors. Because directors exercise control and management over the company, but companies are run for the benefit of the shareholders, the law imposes strict, may be held to a fiduciary duty similar in some respects to that of a trustee. This happens when, for example, the directors of a bank are trustees for the depositors, the directors of a corporation are trustees for the stockholders or a guardian is trustee of his ward's property. A person in a sensitive position sometimes protects himself from possible conflict of interest charges by setting up a blind trust A blind trust is a trust in which the fiduciaries, namely the executors or those who have been given power of attorney, have full discretion over the assets, and the trust beneficiaries have no knowledge of the holdings of the trust and no right to intervene in their handling. Blind trusts are generally used when a settlor wishes to keep the, placing his financial affairs in the hands of a fiduciary and giving up all right to know about or intervene in their handling.

The fiduciary functions of trusts and agencies are commonly performed by a trust company A trust company is a corporation, especially a commercial bank, organized to perform the fiduciary of trusts and agencies. It is normally owned by one of three types of structures: an independent partnership, a bank, or a law firm, each of which specializes in being a trustee of various kinds of trusts and in managing estates. Trust companies are, such as a commercial bank A commercial bank is a type of financial intermediary and a type of bank. Commercial banking is also known as business banking. It is a bank that provides checking accounts, savings accounts, and money market accounts and that accepts time deposits. After the implementation of the Glass-Steagall Act, the U.S. Congress required that banks engage, organized for that purpose. In the United States, the Office of Thrift Supervision The Office of Thrift Supervision is a United States federal agency under the Department of the Treasury. It was created in 1989 as a renamed version of another federal agency (that was faulted for its role in the Savings and loan crisis). Like other US federal bank regulators, it is paid by the banks it regulates. The OTS was initially seen as an (OTS), an agency of the United States Department of the Treasury The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue. The Department is administered by the Secretary of the Treasury, who is a member of the Cabinet, is the primary regulator Bank regulations are a form of government regulation which subject banks to certain requirements, restrictions and guidelines of the fiduciary activities of federal savings associations Federal savings associations , in the United States, are institutions chartered by the Office of Thrift Supervision pursuant to the provisions of the Home Owners' Loan Act, a U.S. federal statute. Although the activities of federal thrifts were once confined primarily to taking deposits from consumers and making residential mortgage loans, federal.

When a court desires to hold the offending party to a transaction responsible so as to prevent unjust enrichment, the judge can declare that a fiduciary relation exists between the parties, as though the offender were in fact a trustee for the partner.

Relationships which routinely attract by law a fiduciary duty between certain classes of persons include these:

Roman and civil law recognized a type of contract called fiducia (also contractus fiduciae or fiduciary contract), involving essentially a sale to a person coupled with an agreement that the purchaser should sell the property back upon the fulfillment of certain conditions.[18] Such contracts were used in the emancipation of children, in connection with testamentary gifts and in pledges. Under Roman law a woman could arrange a fictitious sale called a fiduciary coemption in order to change her guardian or gain legal capacity to make a will.[19]

In Roman Dutch law, a fiduciary heir may receive property subject to passing it to another on fulfillment of certain conditions; the gift is called a fideicommissum. The fiduciary of a fideicommissum is a fideicommissioner and one that receives property from a fiduciary heir is a fideicommissary heir.[20]

Fiduciary principles may be applied in a variety of legal contexts.[21]

Possible relationships

Joint ventures, as opposed to business partnerships, are not presumed to carry a fiduciary duty; however, this is a matter of degree.[22] If a joint venture is conducted at commercial arm's length and both parties are on an equal footing then the courts will be reluctant to find a fiduciary duty, but if the joint venture is carried out more in the manner of a partnership then fiduciary relationships can and often will arise. Arklow vs. MacLean Privy Council 1999

Husbands and wives are not presumed to be in a fiduciary relationship; however, this may be easily established. Similarly, ordinary commercial transactions in themselves are not presumed to but can give rise to fiduciary duties, should the appropriate circumstances arise. These are usually circumstances where the contract specifies a degree of trust and loyalty or it can be inferred by the court.[23]

Generally, the employment relationship is not regarded as fiduciary, but may be so if "within a particular contractual relationship there are specific contractual obligations which the employee has undertaken which have placed him in a situation where equity imposes these rigorous duties in addition to the contractual obligations. Although terminologies like duty of good faith, or loyalty, or the mutual duty of trust and confidence are frequently used to describe employment relationships, such concepts usually denote situations where "a party merely has to take into consideration the interests of another, but does not have to act in the interests of that other". If fiduciary relationships are to arise between employers and employees, it is necessary to ascertain that the employee has placed himself in a position where he must act solely in the interests of his employer[24]. In the Canadian case of Canadian Aero Service ltd v O'Malley [25], it was held that a senior employee is much more likely to be found to owe fiduciary duties towards his employer.

A protector of a trust may owe fiduciary duties to the beneficiaries, although there is no case law establishing this to be the case.[26]

Example

For example, two members of a band currently under contract with one another (or with some other tangible, existing relationship that creates a legal duty), X and Y, record songs together. Let us imagine it is a serious, successful band and that a court would declare that the two members are equal partners in a business. One day, X takes some demos made cooperatively by the duo to a recording label, where an executive expresses interest. X pretends it is all his work and receives an exclusive contract and $50,000. Y is unaware of the encounter until reading it in the paper the next week.

This situation represents a conflict of interest and duty. Both X and Y hold fiduciary duties to each other, which means they must subdue their own interests in favor of the duo's collective interest. By signing an individual contract and taking all the money, X has put personal interest above the fiduciary duty. Therefore, a court will find that X has breached his fiduciary duty. The judicial remedy here will be that X holds both the contract and the money in a constructive trust for the duo. Note, X will not be punished or totally denied of the benefit; both X and Y will receive a half share in the contract and the money.

Elements of duty

A fiduciary, such as the administrator, executor or guardian of an estate, may be legally required to file with a probate court or judge a surety bond, called a fiduciary bond or probate bond, to guarantee faithful performance of his duties.[27] One of those duties may be to prepare, generally under oath, an inventory of the tangible or intangible property of the estate, describing the items or classes of property and usually placing a valuation on them.[28]

A bank or other fiduciary having legal title to a mortgage may sell fractional shares to investors, thereby creating a participating mortgage.

Accountability

A fiduciary will be liable to account if proven to have acquired a profit, benefit or gain from the relationship by one of three means:[2]

Therefore, it is said the fiduciary has a duty not to be in a situation where personal interests and fiduciary duty conflict, a duty not to be in a situation where his fiduciary duty conflicts with another fiduciary duty, and not to profit from his fiduciary position without express knowledge and consent. A fiduciary cannot have a conflict of interest.

Conflict of duties

A fiduciary's duty must not conflict with another fiduciary duty.[29]Stewart v Layton (1992) 111 ALR 687 Conflicts between one fiduciary duty and another fiduciary duty arise most often when a lawyer or an agent, such as a real estate agent, represent more than one client, and the interests of those clients conflict. This would occur when a lawyer attempts to represent both the plaintiff and the defendant in the same matter, for example. The rule comes from the logical conclusion that a fiduciary cannot make the principal's interests a top priority if he has two principals and their interests are diametrically opposed; he must balance the interests, which is not acceptable to equity. Therefore, the conflict of duty and duty rule is really an extension of the conflict of interest and duty rules.

No-profit rule

A fiduciary must not profit from the fiduciary position.[3] This includes any benefits or profits which, although unrelated to the fiduciary position, came about because of an opportunity that the fiduciary position afforded. It is unnecessary that the principal would have been unable to make the profit; if the fiduciary makes a profit, by virtue of his role as fiduciary for the principal, then the fiduciary must report the profit to the principal. If the principal consents then the fiduciary may keep the benefit. If this requirement is not met then the property is deemed by the court to be held by the fiduciary on constructive trust for the principal.

Secret commissions, or bribes, also come under the no profit rule. The bribe shall be held in constructive trust for the principal. The person who made the bribe cannot recover it, since he has committed a crime. Similarly, the fiduciary, who received the bribe, has committed a crime. Fiduciary duties are an aspect of equity and, in accordance with the equitable principles, or maxims, equity serves those with clean hands. Therefore, the bribe is held on constructive trust for the principal, the only innocent party.

Bribes were initially considered not to be held on constructive trust, but were considered to be held as a debt by the fiduciary to the principal.[30] This approach has been overruled; the bribe is now classified as a constructive trust.[31] The change is due to pragmatic reasons, especially in regard to a bankrupt fiduciary. If a fiduciary takes a bribe and that bribe is considered a debt then if the fiduciary goes bankrupt the debt will be left in his pool of assets to be paid to creditors and the principal may miss out on recovery because other creditors were more secured. If the bribe is treated as held on a constructive trust then it will remain in the possession of the fiduciary, despite bankruptcy, until such time as the principal recovers it.

Breaches of duty and remedies

Conduct by a fiduciary may be deemed constructive fraud when it is based on acts, omissions or concealments considered fraudulent and that gives one an advantage against the other because such conduct—though not actually fraudulent, dishonest or deceitful—demands redress for reasons of public policy.[32] Breach of fiduciary duty may occur in insider trading, when an insider or a related party makes trades in a corporation's securities based on material non-public information obtained during the performance of the insider's duties at the corporation. Breach of fiduciary duty by a lawyer with regard to a client, if negligent, may be a form of legal malpractice; if intentional, it may be remedied in equity. Clark v Rowe, 428 Mass. 339, 345 (1998) (dicta).

Where a principal can establish both a fiduciary duty and a breach of that duty, through violation of the above rules, the court will find that the benefit gained by the fiduciary should be returned to the principal because it would be unconscionable to allow the fiduciary to retain the benefit by employing his strict common law legal rights. This will be the case, unless the fiduciary can show there was full disclosure of the conflict of interest or profit and that the principal fully accepted and freely consented to the fiduciary's course of action.

Remedies will differ according to the type of damage or benefit. They are usually distinguished between proprietary remedies, dealing with property, and personal remedies, dealing with pecuniary (monetary) compensation.

Constructive trusts

Where the unconscionable gain by the fiduciary is in an easily identifiable form, such as the recording contract discussed above, the usual remedy will be the already discussed constructive trust.[33]

Constructive trusts pop up in many aspects of equity, not just in a remedial sense,[34] but, in this sense, what is meant by a constructive trust is that the court has created and imposed a duty on the fiduciary to hold the money in safekeeping until it can be rightfully transferred to the principal.

Account of profits

An account of profits is another potential remedy.[35] It is usually used where the breach of duty was ongoing or when the gain is hard to identify. The idea of an account of profits is that the fiduciary profited unconscionably by virtue of the fiduciary position, so any profit made should be transferred to the principal. It may sound like a constructive trust at first, but it is not.

An account for profits is the appropriate remedy when, for example, a senior employee has taken advantage of his fiduciary position by conducting his own company on the side and has run up quite a lot of profits over a period of time, profits which he wouldn't have been able to make without his fiduciary position in the original company. The calculation of profits in this sense can be extremely difficult, because profit due to fiduciary position must be separated from profit due to the fiduciary's own effort and ingenuity.

Compensatory damages

Compensatory damages are also available.[36] Accounts of profits can be hard remedies to establish, therefore, a plaintiff will often seek compensation (damages) instead. Courts of equity initially had no power to award compensatory damages, which traditionally were a remedy at common law, but legislation and case law has changed the situation so compensatory damages may now be awarded for a purely equitable action.

See also

Notes

  1. ^ Bristol & West Building Society v Mothew [1998] Ch 1 at 18 per Lord Millett
  2. ^ Breach of Fiduciary Duty Law & Legal Definition. Legal Definitions Legal Terms Dictionary.
  3. ^ Meinhard v Salmon (1928) 164 NE 545 at 546
  4. ^ ASIC v Citigroup [2007] 62 ACSR 427 at 289
  5. ^ Keech v Sanford [1558-1774] All ER Rep 230
  6. ^ [1927] VLR 134
  7. ^ [1991] 3 NZLR 535
  8. ^ (1991) 22 NSWLR 189
  9. ^ Kak Loui Chan v John Zacharia (1984) 58 ALJR 353
  10. ^ [1988] 2 Qd R 1
  11. ^ [1994] 3 SCR 377
  12. ^ [1982] WAR 1
  13. ^ Re Pantmaenog [2004] 1 AC 158
  14. ^ Note that Canada is the only common law jurisdiction in the world that recognises the doctor/patient relationship as a fiduciary one.
  15. ^ McInerney v MacDonald [1992] 2 SCR 138, (1992) 126 N.B.R. (2d) 271, (1992) 126 N.B.R. (2e) 271, (1992) 93 D.L.R. (4th) 415, 1992 CanLII 57 (S.C.C.)
  16. ^ [1998] 1711 FCA
  17. ^ Glover v Porter-Gaud (2000) 98-CP-10-613
  18. ^ C. P. Sherman, Roman law in the modern world. New Haven, Conn., U.S.A.: New Haven Law Book (1922), pp.182-83. Google Book Search.
  19. ^ Gai Institutiones or Institutes of Roman Law by Gaius, with a Translation and Commentary by Edward Poste. Oxford: Clarendon Press, 1904. Online Library of Liberty - DE MANV. - Institutes of Roman Law. World Wide Web Consortium.
  20. ^ What is a fideicommissum? Ghostdigest.
  21. ^ Kenneth M. Rosen, Fiduciaries, 58 Alabama Law Review 1041(2007). The University of Alabama School of Law.
  22. ^ United Dominions Corporation v Brian Pty Ltd (1985) 59 ALJR 676
  23. ^ United States Surgical Corporation v Hospital Products International Pty Ltd (1984) 58 ALJR 587
  24. ^ Nottingham University v Fishel [2001] RPC 22
  25. ^ [1973] 40 DLR (3d) 371
  26. ^ Although under the laws of Idaho it seems to be assumed that a protector is a fiduciary.http://www3.state.id.us/cgi-bin/newidst?sctid=150070501.K Murray Gleeson (October 2007) Speaking to the Judicial Conference of Australia's annual meeting in Sydney
  27. ^ Fiduciary Bond Law & Legal Definition. Legal Definitions Legal Terms Dictionary.
  28. ^ Guertin & Guertin, LLC - Choosing the Right Fiduciary - www.guertinandguertin.com.
  29. ^ [1]
  30. ^ Lister v Stubbs (1890) 45 Ch D 1
  31. ^ Attorney General (Hong Kong) v Reid [1993] 3 WLR 1143
  32. ^ Brief on fiduciary duty. Wolfram Law Firm, P.C.
  33. ^ Giumelli v Giumelli (1999) 73 ALJR 54
  34. ^ Muchinski v Dodds (1986) 60 ALJR 52
  35. ^ Dart Industries Inc v Decor Corporation Pty Ltd (1993) 179 CLR 101
  36. ^ Nocton v Lord Ashburton [1914] AC 932

References

External links

Categories: Common law | Equity | Legal professions

 

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