Prescription and proscription in fiduciary obligations

Jensen, Darryn (2010) Prescription and proscription in fiduciary obligations. King's Law Journal, 21 2: 333-354. doi:10.5235/096157610792240713

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Author Jensen, Darryn
Title Prescription and proscription in fiduciary obligations
Journal name King's Law Journal   Check publisher's open access policy
ISSN 0961-5768
Publication date 2010-07
Sub-type Article (original research)
DOI 10.5235/096157610792240713
Volume 21
Issue 2
Start page 333
End page 354
Total pages 22
Editor Satvinder Juss
Place of publication Oxford, United Kingdom
Publisher Hart Publishing
Collection year 2011
Language eng
Formatted abstract
Recent case law and scholarship has reignited the debate about whether fiduciary obligations are purely proscriptive in character. In particular, Rebecca Lee has suggested that fiduciary obligations have a prescriptive and 'directional' dimension. This article argues that the purely proscriptive understanding of fiduciary obligations represents the better understanding of English and Australian law. The argument rests upon three pillars. First, the proscriptive paradigm confines fiduciary obligations to their proper place within the broader complex of legal duties owed by those who undertake to act in the interests of other. Secondly, while it is often stated that fiduciaries have obligations to make full disclosure of relevant facts to their principals, an examination of the structure of fiduciary liability reveals that the disclosure rule functions as a subsidiary rule which removes the relevant activities from the scope of the proscription. Finally, the proscriptive character of fiduciary obligations is reflected in the remedies which are awarded for breach of fiduciary duty. Contrary to the position taken by some advocates of the proscription thesis (such as Matthew Conaglen), the author argues that the remedial rationale in breach of fiduciary duty cases is rescission (or elimination of the effect of the transaction) as between principal and fiduciary rather than deterrence of the fiduciary.
Keyword Equity
Fiduciary obligations
Informed consent
Remedies for breach
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2011 Collection
TC Beirne School of Law Publications
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Created: Wed, 08 Sep 2010, 17:12:53 EST by Jane Malady on behalf of T.C. Beirne School of Law