Fiduciaries+When+is+Self-Denial+Obligatory?

Fiduciaries: When is Self-Denial Obligatory?

Thesis: **__“it is too easy – and is ultimately unsatisfactory – to meet any justifiable moral outrage simply by tagging these people as fiduciaries and then applying against them the full remedial force of fiduciary law.__”**

Also: · If the law is to be predictable and clear, tehn categorization of fiduciary duties must be more discriminating. · Article puts forth case for very tight notion of fiduciary duty. · Also illustrates a few forces working against fiduciary law. · Proposes solution for these forces.

I. Precision in Legal Classification and Legal Analysis:

Given the drive for better remedies, the appeal of tagging a crime as a fiduciary breach has increased (proprietary claim via constructive trust, avoidance of restrictive limitation periods, and avoidance of ktual rules on remoteness and damage). But this clouds the doctrine. One response: claim the remedies without the fiduciary tag. This rids us of the logical flaws and preserves the remedy options. But this turns the common law into a sort of buffet list of remedy choices to suit the facts.

II. Precision in Fiduciary Terminology:

Loose terminology is a further cause of imprecision in fiduciary law. Any breach of obligation is not necessarily a breach in FD, and careless to assume that fiduciary remedies are always available. Recognize that not all breaches of equitable obligation are breaches in fiduciary duty. Term fiduciary should be restricted to those who are subject to obligations of loyalty. This would restrict the term appropriately. Fiduciary duty should operate only to exact loyalty: not in matters of K, tort, unjust enrichment and other equitable obligations.

III. Rationalizing the Law/Equity Divide:

“The history of the law’s evolution [courts of common law and equity] should not be allowed to overshadow the truth that the whole process, in all the courts and legislatures, has been a **movement towards further refinement and sophistication of the legal //system//**. **It ought by now be possible to see the law as it is, in its entirety, without the need to rehearse the saga of its development.”** Even so, fiduciary law demands its own treatment. FO are not a sub-group of K law, nor are they a sub-clas of tort. The policy imperatives that underpin it are very different.

IV. Rationalising the Incidence of Fiduciary Obligations

Even if we agree that these are obligations of loyalty and not imposed by agreement, when are they imposed? Despite many tries, no one has successfully defined this.

Focus is on the type of relationship: **“fiduciary obligations should be imposed not simply when certain descriptors are apt, but when the very //function// or //purpose// or //reason// for one party’s role in the relationship //demands// that the party operate on the basis of __self-denial__.”**

V. Remedial Concerns:

Specific point about concern over drive to obtain or drive to assume certain remedies in a fiduciary relationship. Namely, that allowing this to become a buffet menu item would be wrong. Still about the definition of the relationship and the remedies that flow from that.

V. Conclusions:

· Preferential remedies under FR ·  Fiduciary law originated in public policy.
 * Conclusions:** “Fiduciary obligations are imposed by private law, but their function is public and their purpose social... When self-denial is //necessary// to acheive the purpose of a relationship, then, and only then, should fiduciary obligations be imposed. In assessing this the focus is squarely on the role undertaken by the fiduciary, not on the individual personal characteristics of either party. [i.e. =/= vulnerability; contra //Lac// dissent] ... [F]iduciary law should not be the growing area that it is sometimes alleged to be.”