Undergraduate Course: The Law of Fiduciary Duties (LAWS10162)
|School||School of Law
||College||College of Humanities and Social Science
|Credit level (Normal year taken)||SCQF Level 10 (Year 3 Undergraduate)
||Availability||Available to all students
|Summary||Fiduciary duties arise in legal relations where one party (the fiduciary) undertakes to act in the interests of another (the beneficiary) and acquires decision-making authority over the other's interests. In such relations, the fiduciary undertakes a duty to exercise his/her best judgment over the beneficiary's interests. Due to the existence of this core duty, the law imposes a set of very strict proscriptive duties, requiring a fiduciary to avoid or manage situations of conflict of interest.
Established fiduciary positions include trustees, guardians, executors, agents, corporate directors or partners. The family of fiduciary relations has increased steadily throughout the past century, often in an unprincipled way. The label 'fiduciary relationship' has been applied loosely to relationships marked by 'trust and confidence', often as an instrumental shortcut to far-reaching legal remedies.
In this course students will analyse the content and justification of fiduciary duties in private law relations, with a focus on English and Scottish law. Students will acquire an in-depth understanding of the specific duties to which a fiduciary is subject and of the remedies for breach of such duties. The course will allow students to acquire an integrated and coherent understanding of the regulation of fiduciary duties across various legal areas, such as trust law, company law or agency law.
The covered topics include:
General theory of fiduciary duties:
- historical origins of fiduciary duties
- when do fiduciary duties arise?
- the content of fiduciary duties
- breach of fiduciary duties: overview of personal and proprietary remedies
- fiduciary duties in company law
- fiduciary duties of investment intermediaries
- fiduciary duties in banking law
- fiduciary duties in family law
Specific topics may vary from year to year.
The course will be taught in 10 two-hour seminars. Each seminar will be a combination of teacher-led and student-led activities. The student-led activities include group discussion. Students will be divided in groups of three students and asked to discuss a topic among members, followed by a class discussion of group findings.
Information for Visiting Students
|High Demand Course?
Course Delivery Information
|Academic year 2017/18, Available to all students (SV1)
|Learning and Teaching activities (Further Info)
Seminar/Tutorial Hours 20,
Programme Level Learning and Teaching Hours 4,
Directed Learning and Independent Learning Hours
|Assessment (Further Info)
|Additional Information (Assessment)
||1. 75% take home essay
The essay length is 4,000 words excluding cover page, footnotes and bibliography. The date of the essay titles release and essay submission will be announced in the Course Guide.
2. 25% assessed element
This component of assessment may consist of a case comment, a presentation in class, a blog entry, or a poster presentation, as selected by the course organiser. The assessment technique selected will be indicated in the course guide, together with detailed guidelines and assessment criteria.
||The formative assessment consists in a critical analysis of one of the mandatory readings for seminar 4. The handout for seminar 4 will be distributed one week in advance, with the mandatory reading that could be selected for formative assessment clearly indicated.
Students are expected to summarise the prescribed reading very briefly and to comment on article┐s strengths and weaknesses and on its significance in the context of the themes covered in the course up to that point. Participating in the formative assessment is optional.
Collective feedback on submissions will be given in class, in week 4 and will be posted on the course website. Individual feedback will be sent to each student via email within two weeks from the submission date.
|No Exam Information
On completion of this course, the student will be able to:
- Understand the categories of legal relations where fiduciary duties could arise.
- Critically analyse the main theories regarding the content and justification of fiduciary duties and of their remedies.
- Compare and contrast the fiduciary duties imposed in various areas of law.
- Critically analyse primary and secondary sources and use them to present a logical and well-structured argument.
- Demonstrate an ability to work constructively as a member of a group and to express their ideas concisely to their peers.
|There are no mandatory textbooks for this course. The resources below are recommended.|
Monographs on fiduciary duties and powers:
- Andrew Gold and Paul Miller, eds., Philosophical Foundations of Fiduciary Law (Oxford: OUP, 2014)
- Matthew Conaglen, Fiduciary Loyalty: Protecting the Due Performance of Non-Fiduciary Duties (Oxford: Hart Publishing, 2010)
Other relevant monographs:
- Frederic W. Maitland, Equity: Also the Forms of Action at Common Law: Two Courses of Lectures (Cambridge: Cambridge University Press, 1909)
- James Dalrymple, Viscount of Stair, The Institutions of the Law of Scotland (Edinburgh: University Press of Edinburgh and Glasgow, 1981)
Contemporary Equity and Trusts:
- John McGhee et al., eds, Snell's Equity 32nd ed. (London: Sweet & Maxwell, 2010)
- Sarah Worthington, Equity, 2nd ed. (Oxford: Oxford University Press, 2006)
- Thomas Smith and Robert Black eds. Stair Memorial Encyclopaedia, vol. 24 (Edinburgh: Butterworths, 1989)
General Private Law Theory:
- Ernest J. Weinrib, The Idea of Private Law (Harvard: Harvard University Press, 1995)
- Elise Bant and Matthew Harding., eds., Exploring Private Law (Cambridge: Cambridge University Press, 2010)
- A Burrows and Lord Rodger of Earlsferry, eds, Mapping the Law: Essays in Honour of Peter Birks (Oxford: Oxford University Press, 2006)
Ethics and Professions:
- Michael Davis and Andrew Stark, eds. Conflict of Interest in the Professions (Oxford: Oxford University Press, 2001)
- George Brenkert and Tom Beauchamp, eds., The Oxford Handbook of Business Ethics (Oxford: Oxford University Press, 2010)
- The Law Commission, Fiduciary Duties of Investment Intermediaries (2013-2014)
- The Scottish Law Commission, Report on Trust Law (2014)
- The Scottish Law Commission, Discussion Paper on Breach of Trust (2003)
- The Law Commission and the Scottish Law Commission, Trustees' Powers and Duties (1999)
|Graduate Attributes and Skills
||By the end of the course students will:
1) Develop their ability to work independently under fixed deadlines, seeking relevant advice and support when necessary.
2) Develop their ability to work constructively as a member of a group or team, assert leadership or follow instructions.
3) Participate effectively in seminars, workshops and discussions.
4) Develop their capacity of reflecting on the outcomes of individual research efforts with a view to identifying strengths and weaknesses and furthering their own learning.
|Keywords||Fiduciary Duties; Power; Discretion; Vulnerability; Conflict of Interest; Unauthorised Profits; Acco
|Course organiser||Prof Laura Macgregor
Tel: (0131 6)50 2034
|Course secretary||Mrs Susan Leask
Tel: (0131 6)50 2344