10. The Fiduciary Duty

Titles in the Casebook on series provide readers with a comprehensive selection of case law extracts for their studies. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. This chapter discusses how fiduciary relationships cannot be presumed and are based on evidence of a fiduciary duty. It examines the nature of the fiduciary duty and the reasons why it is strictly enforced; considers the application of the fiduciary duty to relationships and transactions in which there is a potential conflict of interest, including cases of information received in confidence or trust; compares and contrast fair-dealing and self-dealing, and explains why the latter is void at the instance of the beneficiary or principal affected; identifies what a fiduciary should do to avoid, and if necessary extract himself from, conflicts of interest; and elucidates the duty to account for unauthorised profits acquired in a fiduciary capacity.