Matthew Conaglen, FIDUCIARY LOYALTY. PROTECTING THE DUE PERFORMANCE OF NON-FIDUCIARY DUTIES Oxford: Hart Publishing (www.hartpub.com), 2010. xliv + 287 pp. ISBN 9781841135830. £50.
| Published date | 01 May 2011 |
| Pages | 320-321 |
| Author | Daniel J Carr |
| Date | 01 May 2011 |
| DOI | 10.3366/elr.2011.0041 |
Disagreements and questions about the fundamental nature of fiduciary liability have been extant for a good number of years now in academic circles. In the world of practice, lawyers and judges have traditionally been less concerned about conceptual and taxonomical explanations of what really underpins the fluctuating rules concerning the identification and regulation of this class of legal persons known as “fiducaries”. That stance has been changing in recent times, however, and this text provides ample justification, alongside a cultivated and critical account of the importance of taxonomy generally, for the importance that is to be accorded to the search for conceptual certainty.
Another relatively recent development has been the central emphasis placed upon the concept of “loyalty” as the core normative driver of the law regulating fiduciaries. As intuitively attractive as the idea of “loyalty” is, as a base value for a body of laws, it is one which lacks a sharpness required for more detailed doctrinal rule building. This carefully argued monograph takes a novel and conceptually subtle approach to explaining the significance of fiduciary loyalty. It represents a sophisticated attempt to explain how more detailed rules can be synthesised in an approach that focuses on fiduciary law's underlying normative imperative of loyalty, both in terms of its content and its systemic significance.
In examining the nature of fiduciary loyalty, and thereby seeking broader instruction, the text subjects certain rules of equity to sustained analysis. It does so not just by pondering the content of disparate rules that attach to commonly identified fiduciary offices. Rather, the exercise is a more ambitious one – by aggregating the individual rules in pursuit of their underlying basis the text moves towards explaining why fiduciary duties exist – and hence advances a more profound argument. This is that the concept of fiduciary loyalty conveniently denotes a juridical reservoir for a discrete and interstitially connected series of principles that serve a broader instrumental purpose. They exist to ensure that a fiduciary will fulfil his
The argument which underpins Dr Conaglen's auxiliary theory of fiduciary duties is...
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