The Federation Press

Fiduciary Obligations

40th Anniversary Republication with Additional Essays

Overview

This volume brings together three separate works written by Paul Finn over nearly 40 years. The first, Fiduciary Obligations, was published in 1977. It has been out of print for many years, though it is still widely cited both in judicial decisions in common law countries and in international scholarship on fiduciary law. It has been regarded widely as a ‘seminal’ or ‘classic’ piece. Its publication preceded two important developments. The first was the High Court of Australia’s systematic reappraisal of equity jurisprudence in the 1980s. This contributed significantly to the shaping and future direction of modern fiduciary law in Australia. The second was the growth in civil litigation in common law countries against banks, advisers in many guises, commercial ‘agents’, franchisees, joint venturers and other commercial actors which raised issues as to the extent to which, if at all, functions they performed for customers, etc, could attract strict fiduciary standards of conduct or merely those lesser standards otherwise imposed by the common law or equity.

These two developments inform the second work in the volume, "The Fiduciary Principle", which was published in Canada in 1989, but is relatively unknown in Australia. Though its scope was limited designedly to those standards of conduct the fiduciary principle imposed on private law fiduciaries, it indicated when, and to what extent, a person or body would be a ‘fiduciary’ for the purposes of those standards. It accepted that, while ‘fiduciary’ could not be defined, it could be described. That description, founded on a ‘legitimate expectation’ test, is commonly used both in Australia and elsewhere.

The third piece, "Fiduciary Reflections" was published in 2014 and contains the author’s personal reflections on the course of Australian fiduciary law since the publication of Fiduciary Obligations. It suggests that, despite the clear signposts for the future development of fiduciary law given by the High Court in the 1980s, recent decisions of subordinate Australian courts seem to be heading, unnecessarily, in the opposite direction. Now at risk are the coherence of fiduciary law and its rationale.

Table of Contents

Foreword by Sir Anthony Mason AC, KBE
List of Chapters
Preface to Original Edition
About this Book
An Introductory Comment by Paul Finn
Table of Cases
Table of Statutes

Fiduciary Obligations (1977)

1.    Fiduciaries

Part I: Fiduciary Offices and the Fiduciary’s Duty to Act Honestly in What he Alone Considers to be the Interests of His Beneficiaries

2.   The Fiduciary Office
3.   The Fiduciary Obligation
4.   Appointments to Fiduciary Offices
5.   Delegation of Discretions
6.   Acting under Dictation
7.   Fettering Discretions
8.   The Duty to Consider Whether a Discretion Should be Exercised
9.   Judicial Review of the Exercise of Discretion
10. The Requirements of the Fiduciary Obligation in Exercising a Discretion
11.  The Fiduciary’s Duty Not to Act for his Own Benefit or for the Benefit of any Third Person
12.  The Duty to Treat Beneficiaries of the Same Class Equally
13.  The Duty to Treat Beneficiaries of Different Classes Fairly
14.  The Duty Not to Act Capriciously or Totally Unreasonably

Part II: The Duties of Good Faith

15.  The Duties of Good Faith
16.  Undue Influence
17.  The Misuse of Property Held in a Fiduciary Capacity
18.  Misuse of Property Held in a Fiduciary Capacity: The Liabilities
19.  The Duty of Confidence
20. Purchases of Property Dealt With in Positions of a Confidential Character
21.  Conflict of Duty and Interest
22. Conflict of Duty and Duty
23. Purchasing Debts and Incumbrances: Renewing Leases and Purchasing Reversions
24. Harming an “Employer’s” Business

Appendix A: Special Powers of Appointment
Appendix B: Appointments to Fiduciary Offices

The Fiduciary Principle (1989)

25. The Fiduciary Principle

Fiduciary Reflections (2014)

26. Fiduciary Reflections

Index

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