...McGill Law Journal ~ Revue de droit de McGill JUSTIFYING FIDUCIARY DUTIES Paul B. Miller* Fiduciary duties are critical to the integrity of a remarkable variety of relationships, including those between trustee and beneficiary, director and corporation, agent and principal, lawyer and client, doctor and patient, parent and child, and guardian and ward. Notwithstanding their variety, all fiduciary relationships are presumed to enjoy common characteristics and to attract a core set of demanding legal duties, most notably a duty of loyalty. Surprisingly, however, the justification for fiduciary duties is an enigma in private law theory. It is unclear what makes a relationship fiduciary and why fiduciary relationships attract fiduciary duties. This article takes up the enigma. It assesses leading reductivist and instrumentalist analyses of the justification for fiduciary duties. Finding them wanting, it offers an alternative account of the juridical justification for fiduciary duties. The author contends that the fiduciary relationship is a distinctive kind of legal relationship in which one person (the fiduciary) exercises power over practical interests of another (the beneficiary). Fiduciary power is a form of authority derived from the legal capacity of the beneficiary or a benefactor. The duty of loyalty is justified on the basis that it secures the exclusivity of the beneficiary’s claim over fiduciary power so understood. Les obligations fiduciaires sont essentielles pour...
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...Title: Fiduciary obligations may spring up by reason of relationships of trust and confidence or confidential relations. Introduction Fiduciary is an important issue arises in business relationships, in partnerships, it helps create a fair business environment for all the parties when working together, in agency, it protects the principles' benefits, in corporations, it may lead the business operates properly and legally. Therefore, fiduciary obligations are closely related to co-operations Trust and confidence are the most important elements in these fiduciary relations, in this essay, the relationship of a fiduciary obligation and above relations will be demonstrated and explained. Table of Content Introduction P.1 Table of Content P.2 The Basic Concept of Fiduciary P.3 Fiduciary Concepts and Obligation vs Partnership Relations P.6 Fiduciary Concepts and Obligation vs Corporate Relations 1. Directors P.8 2. Promoters P.11 Conclusions P.13 Bibliography P.14 The Basic Concept of Fiduciary Fiduciary, under oxford’s dictionaries’ definition, is trustee who is given control or powers of administration of property in trust with a legal obligation to administer the beneficiary’s interest, and the Cambridge dictionary defines “relating to the responsibility to look after someone else's money in a correct way”. It is obvious that the fiduciary concept involves the element of mutual...
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...TN: “How to Restore the Fiduciary Relationship, a conversation with Eliot Spitzer” 1/What does the term “fiduciary duty” mean? RELATIONSHIP TRUST 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. —Bristol & West Builg Society v Mothew [1998] Ch 1 at 18 per , Lord Millett The term fiduciary duty in economics it’s referred to the written or unwritten duty that the fiduciary have towards their clients or shareholder. This relationship it’s based on the trust that clients/shareholder have in the Management or in the financial institution; besides these are delegated to satisfy the interests and the needs of client/shareholder, without taking advantage from their position ( potential conflict of interests). Cite; and explain The fiduciary duty it’s the relationship that exist between shareholders and top management, and between clients and financial institution (i.e. Mutual funds). The relationship it’s based on the confidence/trust that the clients or the shareholder have in the top management or the financial institutions; besides, these are delegated to satisfy the interest of the shareholder/client and not to take advantages of the their powerful position. 2/Who is Eliot Spitzer and what is he best known for? Eliot Spritzer was the general attorney of the New York State. He became famous attachments ...
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...The Principal Fiduciary Duties of Boards of Directors Presentation at Third Asian Roundtable on Corporate Governance Singapore, 4 April 2001 Professor Bernard S. Black Stanford Law School bblack@stanford.edu 1-650-725-9845 Introduction I want to offer an overview of the principal fiduciary duties of boards of directors. I will speak mostly from a common law perspective. Fiduciary duties of directors were first elaborated by common law judges, operating without any guidance from the formal written law. Indeed, the company laws of the United States, and many other common law jurisdictions, contain no statement at all of the core fiduciary duties of care and loyalty. The fiduciary duties of directors are continuing to evolve, again without formal written law. The classic statement, still found in many American law school textbooks, is that directors owe to shareholders, or perhaps to the corporation, two basic fiduciary duties: the duty of loyalty and the duty of care. I believe that this is too simple a picture. There are at least two additional core duties that directors have today: a duty of disclosure, and a duty that has no precise name, that I will call the duty of extra care when your company is a takeover target. I want to offer, for each of these duties, a brief statement of the duty, why it exists; and how the duty is enforced or, sometimes, not enforced. I will speak about duties of directors, but these duties apply to officers also. 1 ...
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...Introduction: Section 2(13) of company’s act defines a director may be defined as a person having control over the direction, conduct, management, or superintendence of affairs of a company. Any person in accordance with whose direction or instructions, the board of directors of a company is custom to act is deemed to be a director of a company. Section 2 (6) of the company’s act states that the directors are collectively referred to as board of directors are simply the borad. Directors being pillars of corporate governance (Cowan, 2004) should at all times act honestly and use reasonable diligence in the discharge of their duties. This is more so in light of recent major corporate issues like ENRON & Worldcomm in the United States and the Transmile case in Malaysia. In essence directors are agents of the company and as agents, they owe a duty of trust to the company and shall do their utmost to put the interest of the company first before personal ones. Directors of a company are responsible in managing the affairs and business of the company. Some or each and every one of the shareholders will normally be involved in the company’s management for those company that are smaller in size, particularly small family companies. On the other hand, bigger company will have managers that specialized only in the conduction to the company’s business. These managers may only own a small proportion of the company’ shares. According to s142 of the Companies Act 1965, a company must...
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...qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmrtyuiopasdfghjklzxcvbnmqwer...
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...increased sales by 28%. Based on this information and on her friendship with Bob, Joan recommends Bob for the loan, and the board accepts her recommendation. Bob’s airline falls into bankruptcy, Bob defaults on the loan, and the bank is only able to recover $150 million. The shareholders bring a derivative lawsuit against Joan for breach of her fiduciary duty of care. They claim that her research into Bob was deficient, and based on Bob’s background and the state of the airline industry Joan should have known that the venture was not likely to succeed. Is Joan’s conduct protected by the business judgment rule, and is the derivative action against Joan likely to succeed? InBayer v. Bayer, 49 N.Y.S.2d 2 (N.Y. 1944), Doctors Camille and Henri Dreyfus conceived chemical processes and inventions, and organized a successful and profitable corporation, Celanese Corporation of America, to market these original discoveries. Doctor Camille Dreyfus served on the board of directors as its president and Doctor Henri Dreyfus as it vice president. Stockholders brought a derivative law suit charging Doctors Camille and Henri Dreyfus with breach of fiduciary duty. They are charged with negligence, waste, and improvidence for embarking upon a radio advertising campaign costing about $1,000,000 a year when the company currently had more orders than it could handle. They are charged with negligence in selecting the type of program that they did, and for renewing the contract for a second year. Further...
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...Business Law and Bankruptcy Assignment 3 1. Joan’s conduct is protected by the business judgment rule, because it’s a legal principle that makes officers, directors, managers, and other agents of the corporation immune form liability to the corporation for the loss incurred in corporate transactions that are within their authority and power to make when sufficient evidence demonstrates that the transactions were made in good faith. 2. Joan recommends that ManBant give Bob a $300 million loan to start a new airline which is to be collateralized by the airplanes owned by Bob’s new airline. The board accepts her recommendation and gives Bob the loan. Unfortunately, when Bob does a poor job and his airline goes bankrupt. When Bob defaults on the loan, the bank is only able to recover $150 million. The shareholders bring a derivative lawsuit against Joan for breach of her fiduciary duty of care. How likely is the derivative action against Joan to succeed? Rule: The standard by which decisions of a board of directors of a business are to be reviewed by the courts is known as the business judgment rule. The business judgment rule provides that a board of members action is protected from challenge if there is a good business justification for the decision and it isn’t fraudulent or an abuse of discretion. When the business judgment rule is applied, the burden of proof to establish the impropriety of the decision is on those challenging it. In the case United States...
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...RULES OF PROFESSIONAL CONDUCT TABLE OF CONTENTS FOREWORD....................................................................................................................... 3 APPLICATION OF THE RULES OF PROFESSIONAL CONDUCT ................................... 8 INTERPRETATION OF THE RULES OF PROFESSIONAL CONDUCT ...........................11 100 - GENERAL .................................................................................................................12 101 Compliance with Bylaws, Regulations and Rules ........................................12 102.1 Conviction of Criminal or Similar Offences ..................................................12 102.2 Reporting Disciplinary Suspension or Cancellation of Membership, or Restriction of Right to Practise ....................................................................12 103 False or Misleading Applications .................................................................12 104 Requirement to Co-operate .........................................................................13 105 Intimidation .................................................................................................13 200 - STANDARDS OF CONDUCT AFFECTING THE PUBLIC INTEREST......................14 201.1-4 Maintenance of Reputation of the Profession ..............................................14 Advocacy Services ......................................................................................14 201.5 202.1 Integrity and Due Care...
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...Business Ethics John A. Goodman was a real estate salesman in the state of Washington. Goodman sold to Darden, Doman & Stafford Associates (DDS), a general partnership, an apartment building that needed extensive renovation. Goodman represented that he personally had experience in renovation work. During the course of negotiations on a renovation contract, Goodman informed the managing partner of DDS that he would be forming a corporation to do the work. A contract was executed in August between DDS and “Building Design and Development (In Formation), John A. Goodman, President.” The contract required the renovation work to be completed by October 15. Goodman immediately subcontracted the work, but the renovation was not completed on time. DDS also found that the work that was completed was of poor quality. Goodman did not file the articles of incorporation for his new corporation until November 1. The partners of DDS sued Goodman to hold him liable for the renovation contracts. Goodman denied personal liability. Was it ethical for Goodman to deny liability? Is Goodman personally liable? Goodman v. Darden, Doman & Stafford Associates, 100 Wn.2d 476, 670 P.2d 648, Web 1983 Wash. Lexis 1776 (Supreme Court of Washington) Goodman is going to be personally liable because on the date the contract was signed he was not a validly formed corporation for lack of filing his articles of incorporation...thus he did not have the protection of the corporate limited liability. The...
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...Bubba Tech, inc (BTI) [Study Case] QUESTION 1 Based on the limited facts of this case, prepare a list of the operational issues to present the top management at BTI. Include in your list any corporate governance issues of importance in relation to the management of BTI after it becomes a public company and any issues related to the relationship between BTI and Randy Burnham & Co. ANSWER: Referring to the case of Bubba Tech, Inc. (BTI), there are several operational issues to be presented to the top management at BTI which concerning the corporate governance and issue related to the relationship between BTI and Randy Burnham & Co. The operational issues that can be highlighted are the issue of working with potentially biased audit firm, lack of internal control and lack of corporate governance. The chief financial officer (CFO) of BTI, Willie Carson was once an employee of the Randy Burnham & Co., an accounting firm that is currently acting as the auditor for BTI. The relationship between Carson and the auditors from Randy Burnham & Co. may cause a conflict of interest. A conflict of interest is a situation in which private interests or personal considerations could affect or to perceived to affect both Carson and the auditors from Randy Burnham & Co. judgements to act in the best interests of BTI. The relationship of Carson and the auditors may influence the judgement and the decision relevancy that creates many of the conflict of interest problems in the business. For...
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...Introduction The concept of fiduciary obligations or duty is one of the most important areas in Australian law. In this project, I will try to illustrate and explain the duties in three kinds of relationships including the relationship between a director and a company, the relationship between the promoters and the corporation and the relationship between business partners. In each relationship, what kinds of the fiduciary duties should be performed is elaborated in details. The aim of the project is to help the readers to understand what “fiduciary obligations” actually means in Australian law. Fiduciary Duty of Directors According to the general law and the Corporations Act ss181 -184, as fiduciaries, the directors must have the fairness, loyalty and good faith when they implement the discretions and powers entitled to them. They cannot use their position of trust to benefit themselves at the expenses of the business without the company’s consent and full knowledge. In other words, we can say since the directors are acting on behalf of their company, they owe the duties of loyalty and good faith due to the fiduciary relationship with the companies. In addition, refer to the Corporation Act ss180, and the case of Percival v Wright 1902, the directors owed duties to the company but not shareholders individually. On the other hand, in depth, the fiduciary obligations of the directors can be divided into four aspects: 1. Directors have the duty to act in good faith for...
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...Robert W. MOSER, Plaintiff-Appellant, v. Mary BERTRAM, Defendant-Appellee SUPREME COURT OF NEW MEXICO 115 N.M. 766; 858 P.2d 854; 1993 N.M. LEXIS 221; 32 N.M. St. B. Bull. 693 August 10, 1993, Decided OPINION BY: FROST This appeal from a summary judgment requires us to determine whether a real estate seller's agent owes a fiduciary duty to a prospective purchaser when the seller's agent and the purchaser's real estate agent work for the same real estate broker. The district court held that there is no such fiduciary duty, and we agree.The material facts are undisputed. Plaintiff-appellant Robert Moser, an individual from California interested in purchasing investment realty in New Mexico, sued defendant-appellee Mary Bertram, a real estate sales agent employed by the Santa Fe brokerage firm of Vidal Garcia doing business as Century 21 Blue Chip Realty ("Blue Chip"), for breach of fiduciary duty. Bertram was listing agent for property that Moser wanted to purchase, a residence located in Santa Fe, New Mexico. Moser hired Dolores Lee as his buyer's agent to secure his acquisition of the property. Lee, like Bertram, was employed by Blue Chip. With Lee's assistance, Moser contracted to purchase the property contingent upon his acquisition of financing by July 20, 1988. Moser was unable to secure financing by this date and the seller granted him an extension... Moser failed to secure the necessary financing by the new deadline, and the agreement terminated. Approximately one...
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...shareholder went ahead and entered into contract with BB Ltd, Jillo Pty Ltd, and Con Development Ltd. All the contracts made were over USD 100, 000, and the last two were over USD 900,000. Upon realization of the contracts, a meeting was convened and a resolution was made that stated that Betty acted improperly and failed to discuss the contracts with board members. As a result, the three contracts have been labeled as void and ultra vires and Bechdo Pty does not recognize them. The paper seeks to advise, Bechdo Pty Ltd, BB Ltd, Jillo Pty Ltd, and Con Development Ltd in regard to their liabilities and legal rights to the contract. Moreover, advice is given on legal grounds that may be taken by Bechdo Pty Ltd against Betty, Charlie, and Doris. Rules First, a corporation or a limited company is an artificial entity which is independent of its member founders, and is capable of engaging in a contract, suing, or get sued as an entity. Therefore, as an independent entity a limited company can sue its shareholders if they engage in malicious acts which do not abide to the set laws (Chen-Wishart n.d). A contract is an agreement entered by two or more people. The agreement should be enforceable by the law and it can...
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...In the case of Bayer v. Beran, 49 N.Y.S.2d 2 were the shareholders alleged two causes of action. In the first, the shareholders alleged a breach of fiduciary duty by the directors in connection with a program of radio advertising. In the second, they alleged a breach of fiduciary duty relating to payments made to a corporate vice-president and director. However, the court did not fine these to be so therefore dismisses the action. Joan can not bring against board for breach of contract as a shareholder but breach of contract violation nor fiduciary duties. The fiduciary must subordinate his individual and private interests to his duty to the corporation whenever the two conflict. Winter v. Anderson, 242 App.Div. 430, 275 N.Y.S. 373. In an address delivered in 1934, Mr. Justice, now Chief Justice, Stone declared that the fiduciary principle of undivided loyalty was, in effect, 'the precept as old as Holy Writ, that 'a man cannot serve two masters'. More than a century ago equity gave a hospitable reception to that principle and the common law was not slow to follow in giving it recognition. No thinking man can believe that an economy built upon a business foundation can long endure without loyalty to that principle'. The 'business judgment rule', however, yields to the rule of...
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