breach of fiduciary duty links and cites motherlode file mlcg 5-12-2012

7/31/2019 Breach of Fiduciary Duty Links and Cites Motherlode file mlcg 5-12-2012

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http://cyber.law.harvard.edu/trusting/unit5all.html

Excerpt from:The New Palgrave Dictionary of Economics and the Law, Definition of "fiduciary duties"by Tamar Frankel

Vol.2, p.127-128fiduciary duties. Fiduciary duties fall into two broad categories: the duty of loyalty and theduty of care. These duties vary with different types of relationships between fiduciaries andtheir counter-parties ('entrustors').Recently, courts have imposed fiduciary duties onunion officers, physicians and clergymen.

Fiduciary relationships appear in many legal contexts: contracts, wills, trusts and elections(e.g. of corporate directors). However, fiduciary duties and remedies draw on a commonsourceequity. Thus, in addition to damagesa remedy in common lawfiduciaries mustaccount for ill-gotten profits even if their entrustors suffered no injury a remedy in equity.The similarities and differences among fiduciary relationships explain why law regulates

fiduciaries in the first place, and why the regulation varies with different classes offiduciaries. Therefore, before discussion fiduciary duties we discuss the features by whichfiduciary relationships can be recognized.

Features of Fiduciary Relationships. (1) Fiduciary relationships are service relationships, inwhich fiduciaries provide to entrustors services that public policy encourages. Bailees,escrow agents, agents, brokers, corporate directors and officers, partners, co-venturers,lawyers and trustees all render service to entrustors. Some fiduciaries, such as partners,may be both fiduciaries and entrustors of each other.

(2) To perform their services effectively, fiduciaries must be entrusted with power over the

entrustors or their property ('power'). The extent of entrusted power varies with the parties'desires and terms of their arrangements.Arrangements in which entrustors are precludedfrom controlling their fiduciaries in the performance of their services, categorized in law as'trust', vest far more power in the fiduciaries than arrangements, categorized in law as'agency', in which entrustors control their fiduciaries in the performance of their services.The extent of vested power depends also on the freedom of entrustors to remove theirfiduciaries and retrieve the entrusted property.The magnitude of the powers entrusted tofiduciaries is also related to the cost of specifying the fiduciaries' future actions. Thus theservices of escrowees and bailees, which do not require broad discretion, can be spelled outeasily in advance, while the services of investment managers and trustees, which requirebroader discretion, can be described only in general terms because the details depend on

future unknown circumstances.

(3) The sole purpose of entrustment is to enable fiduciaries to serve their entrustors.Entrustment enables fiduciaries to use entrusted power for other purposesfor their ownuse or the use of third parties. Entrustors' losses from abuse of entrusted powers can behigher than their benefits from the fiduciaries' services. therefore, and entrustor will nothand over $100 to a fiduciary if the probably loss of the $100 from the fiduciary's


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embezzlement, (e.g., a 50% chance) exceeds the expected gain from the relationship (e.g.$5).

(4) Entrustors' costs of monitoring fiduciaries' use of entrusted power are likely to exceedentrustors' benefits from the relationship. For example, if the adviser's interests conflict

with those of the entrustors, the value of their advice, even their expert advice, is doubtful.Monitoring such conflicts of interest is costly. Similarly, the very utility of the relationshipfor clients would be undermined if the clients must watch over their discretionaryinvestment managers to prevent abuse of power.

(5) Entrustors' costs of monitoring the quality of fiduciary services are likely to be veryhigh, because most fu services involve expertise that entrustors do not possess. Thesemonitoring costs may exceed the benefits to entrustors from the relationship. In addition,the quality of some services cannot be determined by their results: a defendant may lose hiscase even if his lawyer has performed brilliantly. The quality of some services cannot beeasily established at the time of performance: it may take years to discover that a will is

faulty.

(6) The fiduciaries' costs of reducing the entrustors' monitoring costs may exceed thebenefits to fiduciaries from the relationship. Fiduciaries can reduce entrustors' monitoringcosts by 'bonding', insurance and third-party guarantees, provided their costs do not exceedtheir benefits from the relationship. Because of these limits, their efforts may not e enoughto fully cover the entrustors' risk of loss.

(7) Alternative external controls that reduce entrustors' risks, such as market controls, eitherdo not exist or are too weak. Courts recognize new fiduciary relations when, in theiropinion, the historical protections of entrustors have eroded. For example, physicians

recently joined the family of fiduciaries as they became involved in conflict of interestsituationswhen physicians own pharmacies that supply their patients' medicines, or whenthe interests of the physicians' employers conflict with the patients' optimal medicaltreatment.

The purpose and effect of fiduciary duties. Fiduciary duties are imposed when publicpolicy encourages specialization in particular services, such as money management orlawyering, and when the entrustors' costs of specifying and monitoring the fiduciaries'functions threaten to undermine the utility of the relationship to entrustors. The ultimateeffect of the law is to provide entrustors with incentives to enter into fiduciaryrelationships, by reducing entrustors' risks and costs of preventing abuse of entrustedpower, and of ensuring quality fiduciary services. Judicial enforcement of fiduciary dutiesshifts entrustors' costs to taxpayers. The law imposes on fiduciaries duties that limit theirfreedoms but increases their marketability by endowing them with a reputation for honestybacked by reputation.

Excerpt from:Fiduciary Law


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by Tamar FrankelCalifornia Law Review, May, 1983, 71 Ca. L. Rev. 795

p.797-802

The purpose of this Article is to inquire into the nature of fiduciary relations and thepolicies, principles, and rules that govern them. Part I discusses status, contract, andfiduciary relations. It shows that fiduciary relations are sufficiently distinct and importantin our society to warrant treating the law applicable to them as a separate area of the law.

I

THE IMPORTANCE OF FIDUCIARY RELATIONS AND FIDUCIARY LAW

A. The Rise of the Fiduciary Society

Societies may be distinguished by the predominant social and legal relations through whichtheir members interact. This is not to suggest that only one kind of relation exists in anygiven society, but merely that in each society one type of relation is paramount, and that, associal trends change, relations tend to shift and merge. Although it is probably incorrect tosay that societies have evolved in a linear manner according to their predominant socialrelation, i.e., from status to contract to fiduciary relations, one can observe changes in asociety's basic relations.

Law should reflect the changes in societal structure. Thus, a major reason for recognizingand developing a separate body of fiduciary law is that our society is evolving into one

based predominantly on fiduciary relations. The body of law governing fiduciary relationscan affect and be affected by this social trend.

Fiduciary relations and the rules that govern them can be better understood when comparedto two other important relations: status and contract relations and the laws that governthem. The comparison involves three features. The first deals with the contribution of eachtype of relation to each party's needs and desires. The comparison deals, second, with theeffect of the relation on the balance of power between the parties. The two are interrelated.While a relation with others is essential to each party's survival, n11 such a relation mayalso create a dependence of one party on another, that can in turn limit the freedom ofchoice of the person who is dependent. The third feature with which this comparison dealsis the role of law in the relation, and its effect on the provision of each party's needs, oneach party's freedom from coercion by the other, and on the structure and promotion of therelation.

1. Primary Social Relations

a. Status


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The parties to a status relation must rely on each other to satisfy their needs and desires. Ina status relation, such as that of parent and child, one party (the Power Bearer) usually hasa partial or full monopoly over the means for satisfying the needs of the other party (theDependent). The Power Bearer can coerce the Dependent into service and obedience bymanipulating, increasing, or decreasing the satisfaction of the Dependent's needs. As a

result of the Power Bearer's monopoly, the Dependent generally defers to the will of thePower Bearer in order to ensure the means for his n12 own survival.

Although the Power Bearer may attempt to minimize the care he gives and maximize theservice he extracts, the Power Bearer takes care of the Dependent in order to ensure theDependent's services or other benefits from the relation for himself. In other words, thePower Bearer furthers his own interest by avoiding gross abuse of his power over theDependent. n13 In sum, in status relations the Power Bearer dominates the Dependent andthe Dependent's freedom is limited in order to ensure the means for his survival, but thePower Bearer must also limit abuse in the exercise of his power in order to meet his ownneeds.

The law plays a crucial role in the establishment of a status relation. To a substantial extent,the law rather than the parties determines the entry and exit from the relation. n14Moreover, the law vests power in the Power Bearer and even supports a monopoly on thepower. The law rarely interferes in the exercise of the power, setting only broad outerlimits and leaving the Dependent with few or no alternatives for satisfying his needs. n15In most status relations, the law gives higher priority to the security of both parties than tofreedom for the Dependent. n16

b. Contract

The parties to a contract relation must also rely on each other to satisfy their needs ordesires. Unlike the parties in a status relation, however, neither can use force or monopolyto achieve his purpose. Instead of asserting personal dominance over the other party, eachparty must persuade the other to exchange. Nevertheless, the parties are in conflict, as eachparty must protect himself from the other's self-interested behavior.

Unlike the parties in status relations, contract parties have many options for satisfying theirneeds. They determine their own needs, they bargain to obtain them, and they can enforcetheir bargains. The law provides each party to a contract with equal legal freedom to makeindependent decisions as to what to bargain for, and what to give in exchange. Contractfrees each party from domination by the other, making them more independent than in astatus relation; but its price is [*800] the absence of security. No party to a contract has ageneral obligation to take care of the other, and neither has the right to be taken care of.

The main role of the law in contract relations is to prohibit the use of force and monopoly,and to enforce the rules the parties freely set for themselves. The law does not make therules or the contract, although it may facilitate the bargaining process. In addition, the lawencourages markets to offer numerous options to each individual from which to satisfy hisneeds by exchange.


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c. The Fiduciary Relation

As in a status relation, one party to a fiduciary relation (the entrustor) n17 is dependent onthe other (the fiduciary). This dependence, however, is seldom as broad and pervasive as

that in status relations. By definition, the entrustor becomes dependent because he mustrely on the fiduciary for a particular service. n18 The fiduciary, however, does not provideevery service that the entrustor may need or desire.

Furthermore, the fiduciary himself is not independent, except perhaps in the area of hisparticular function. He must seek other fiduciaries for other services. For example, moneymanagers generally rely on physicians for medical treatment, while physicians may look tomanagers for investment advice. Thus, in a society with many types of fiduciaries, eachperson may sometimes be a Power Bearer and at other times be a Dependent.

Like a prospective party to a contract, an entrustor often can choose among alternative

fiduciaries and negotiate the terms of the relation. A fiduciary rarely has a monopoly overthe entrustor's needs. Moreover, unless the entrustor agrees, the fiduciary cannotmanipulate the terms of his performance once the relation has been established.

In contrast to contract and status relations, in which both parties seek to satisfy their ownneeds and desires through the relation, fiduciary relations are designed not to satisfy bothparties' needs, but only those of the entrustor. Thus, a fiduciary may enter into a fiduciaryrelation without regard to his own needs. Moreover, an entrustor does not owe the fiduciaryanything by virtue of the relation except in accordance with the agreed-upon terms orlegally fixed status duties. Therefore, in a fiduciary relation, the entrustor is free fromdomination by the fiduciary, although he may still be coerced in parallel status relation.Thus, fiduciary relations combine the bargaining freedom inherent in contract relationswith a limited form of the power and dependence of status relations.

Accordingly, the law of fiduciary relations should, if possible, preserve the best aspects ofstatus and contract relations. It is desirable for the entrustor to depend on the fiduciary tosatisfy certain needs. But it would not be desirable for fiduciary law to impose the relationon either law should permit the parties to enter into the relation freely and to ensure that thefiduciary will not coerce the entrustor. The model of fiduciary law that is built in theremainder of this Article seeks to achieve these goals.

2. Status, Contract, and Fiduciary Societies

One is tempted to follow in Sir Henry Maine's footsteps and state that there has been anevolution from status to contract to a fiduciary society. n19 Yet as a matter of history,Maine's thesis is subject to criticism. n20 Societies are too complex, diffuse, and many-faceted to sustain a theory of linear societal evolution. Nevertheless, a society's entirestructure can be influenced by its predominant relation. I believe it is therefore safe toassert that certain societies are more suited to particular types of relations, and that anexamination of these societies can demonstrate how these relations work.


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A feudal society, such as the one that existed in England during the Middle Ages, is basedprimarily on status. Such a society is static, because the status of Power Bearers andDependents is predetermined [*802] by law. Furthermore, in a status society Dependentshave few options for taking care of themselves, making their security precarious. Finally,

personal dominance of one individual over another is common and accepted in such asociety.

In a contract society, individuals n21 can provide for their basic needs, and can gain byexchanging the surplus they produce. In addition, such a society offers many options for itsmembers to satisfy their needs. A contract society values freedom and independencehighly, but it provides little security for its members. An example of a society basedprimarily on contract is the market society of the United States during the IndustrialRevolution.

I submit that we are witnessing the emergence of a society predominantly based on

fiduciary relations. This type of society best reflects our contemporary social values. In oursociety, affluence is largely produced by interdependence, n22 but personal freedom ischerished. Society's members turn to an arbitrator, the government, to obtain protectionfrom personal coercion by those on whom they depend for specialized services. A fiduciarysociety attempts to maximize both the satisfaction of needs and the protection of freedom.

Unlike status and contract societies, a fiduciary society emphasizes not personal conflictand domination among individuals, but cooperation and identity of interest pursuant toacceptable but imposed standards. It permits the government to moderate between altruisticgoals and individualistic, selfish desires, as well as between the social goal of increasingthe common welfare and the individual desire to appropriate more than a "fair share."

Excerpt from:Fiduciary Duties as Default Rulesby Tamar FrankelOregon Law Review, Winter, 1995, 74 Or. L. Rev. 1209

p.1210-1215

This Article examines the status of fiduciary rules as default rules: whether, and how,entrustors can waive fiduciary duties owed to them. n6 Contractarians argue that fiduciaryrules constitute default rules around which the parties can bargain. n7 Anti-contractariansargue that at least some rules are mandatory and cannot be waived. n8 In my opinion, mostfiduciary rules consti- [*1212] tute default rules. However, entrustors may only waivefiduciary duties owed to them if they follow a two-step procedure.

First, entrustors must be put on clear notice that, with respect to the particular duties thatthey waive, they can no longer rely on their fiduciaries; instead, the entrustors must fendfor themselves. Second, the fiduciaries must provide entrustors with information acquired


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by virtue of their position as fiduciaries to enable entrustors to make an informedindependent decision regarding the waiver.

The reasons for this procedure stem from the unique nature of fiduciary relationships andthe law governing them. In varying degrees the relationships expose entrustors to

extraordinary risks. Entrustors must entrust power or property to the fiduciaries because thefiduciaries could not perform their services effectively otherwise, n9 yet this exposesentrustors to the risk that the fiduciaries will appropriate the entrusted property or interest,or misuse the power entrusted to them. The appropriation or abuse of power can result in aloss that far exceeds the potential gain from the fiduciaries' services.

In addition, entrustors become dependent on their fiduciaries and may not be able tomonitor the quality of their services because: (1) the skills involved are not easily acquiredor understood; (2) the cost to entrustors of monitoring and evaluating such services wouldundermine the utility of the arrangement; and (3) there exists no other effective alternativemonitoring mechanism. In sum, fiduciary rules reflect a consensual arrangement covering

special situations in which fiduciaries promise to perform services for entrustors andreceive substantial power to effectuate the performance of the services, while entrustorscannot efficiently monitor the fiduciaries' performance. n10

Fiduciary law addresses the unique aspects of this relationship. First, the law vests inentrustors the legal right to receive quality fiduciary services. It imposes on fiduciaries aduty to exercise care and skill, akin to the tort of negligence. Second, the rules vest inentrustors the legal right to rely on the honesty of their fiduciaries by imposing onfiduciaries a duty of loyalty, as well as other specific duties, in order to deter fiduciariesfrom misappropriating the entrusted property or interests. This part of fiduciary law is akinto the crime of embezzlement n11 and the tort of conversion. n12

The status of fiduciary rules as default rules conflicts with the fiduciaries' duties of loyaltyand reliability. While bargaining with their fiduciaries on the issue of waiver, entrustorsmust fend for themselves as independent parties. Their right to rely on their fiduciariesmust be eliminated. In fact, during the bargaining, the entire relationship must beterminated.

Fiduciary law allows such termination of the relationship with respect to specifiedtransactions only if the parties follow a specific procedure. This procedure is designed toensure an effective transition from the fiduciary mode in which entrustors rely on theirfiduciary, to a contract mode in which parties rely on themselves. That is why fiduciariesmust put entrustors on notice that, in connection with the specified transaction, entrustorscannot [*1214] rely on their fiduciaries. n13 That is why entrustors must be capable ofbargaining independently with their fiduciaries and have the capacity to enter into bargains.That is also why, to allow entrustors to make informed decisions, fiduciaries must providethem with information regarding the transaction, especially when the fiduciaries acquiredthis information in connection with the performance of their services to the entrustors. Thisprocedure is, and should remain, mandatory. n14


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In addition, circumstances exist where fiduciary duties are not waivable for reasons such asdoubts about the quality of the entrustors' consent (especially when given by publicentrustors such as shareholders), and the need to preserve institutions in society that arebased on trust. Further, non-waivable duties can be viewed as arising from the parties'agreement ex ante to limit their ability to contract around the fiduciaries' duties. n15 Under

these circumstances fiduciary rules should generally be mandatory and non-waivable.

I then examine three possible solutions to public entrustors' protection. One is the proposedcontractarian view which would eliminate fiduciary law and lead to the creation of propertyrights for corporate management in its office. The second solution is to impose all or mostfiduciary rules as mandatory rules and ignore so-called consents by public entrustors. Thethird is to establish a government office as surrogate for consent by public entrustors, alongthe scheme established in the Investment Company Act of 1940. n16 There are, no doubt,other solutions as well. I conclude that private and public fiduciaries should be subject to aseparate body of rules and reject the contractarian view.

Excerpt from:Contract and Fiduciary Dutyby Frank H. Easterbrook and Daniel R. FischelThe Journal of Law and Economics, 1993, 36 J.L. & Econ. 425p.426-29

Ever since Ronald Coase published "The Problem of Social Cost," it has been understoodtha tlegal rules can promote the benefits of contractual endeavors in a world of scarceinformation and high transactions costs by prescribing the outcomes the parties themselveswould have reached had information been plentiful and negotiations costless. [FN3] Legalrules cannot transfer wealth from agents to principalsnot so long as the price agentscollect for their services is unregulated. Acting on moral belief that agents ought to beselfless will not make principals better off; it will instead lead to fewer agents, or highercosts of hiring agents. With powers hedged in by competition and the price system, judgesmust choose between promoting the parties' contracting (and thus increasing both privateand social wealth) and frustrating it (injuring the parties and society). That is not a hardchoice. Providing, as a public service, the rules the parties themselves would have chosenin a transaction-cost-free world fosters instrumental and ethical objectives at the same time.

So, we concluded, a "fiduciary" relation is a contractual one characterized by unusuallyhigh costs of specification and monitoring. The duty of loyalty replaces detailed contractualterms, and courts flesh out the duty of loyalty by prescribing the actions the partiesthemselves would have preferred if bargaining were cheap and all promises fully enforced.The usual economic assessments of contractual terms and remedies the apply. Fiduciaryduties are not special duties; they have no moral footing; they are the same sort ofobligations, derived and enforced in the same way, as other contractual undertakings.[FN4]Actual contracts always prevail over implied ones. Obligations implied to maximize valuein high-transactions-costs cases may have some things in common, but differences in theunderlying transactions will call for different "fiduciary" obligations, just as actualcontracts differ across markets.


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II

Objections to a contractual understanding of fiduciary duties take several forms. [FN7] One

is that judges simply do not talk like Ronal Coase. No, they don't; but we seek knowledgeof when fiduciary duties arise and what form they take, not theories of rhetoric a theory ofwhat judges do, not of explanations they give. Another is that the contractual perspectivecannot explain the structure of the legal rules. Such an objection is compelling, if true. Is ittrue?

Excerpt from:The Contractarian Basis of the Law of Trustsby John H. LangbeinYale Law Journal, December, 1995, 105 Yale L.J. 625

p. 625-631

I. INTRODUCTION

We are accustomed to think of the trust as a branch of property law. TheRestatement(Second) of Trusts defines the trust as "a fiduciary relationship with respect toproperty," [FN1] and the codes [FN2] and treatises [FN3] say similar things. This way ofspeaking about the trust omits an important dimension.

The contractarian claim. In truth, the trust is a deal, a bargain about how the trust assets areto be managed and distributed. To be sure, the trust originates exactly where convention

says it does, with property. The Restatement says, "A trust cannot be created unless there istrust property." [FN4] The owner, called the settlor, transfers the trust property to anintermediary, the trustee, to hold it for the beneficiaries. We treat the trustee as the newowner for the purpose of managing the property, while the trust deal strips the trustee of thebenefits of ownership.

The distinguishing feature of the trust is not the background event, not the transfer ofproperty to the trustee, but the trust deal that defines the powers and responsibilities of thetrustee in managing the property. Sometimes the trust deal also confers significantdiscretion upon the trustee over dispositive provisions, that is, in allocating the beneficialinterests among the beneficiaries. The settlor and the trustee may express their deal indetailed terms drafted for the particular trust, or they may be content to adopt the defaultrules of trust law. Either way, the deal between settlor and trustee is functionallyindistinguishable from the modern third-partybeneficiary contract. Trusts are contracts.

Trust without contract. The contractarian account, presupposing a separate trustee, does notembrace the declaration of trust, which is a mode of trust creation that allows the transferorof property simply to declare himself or herself trustee for the transferee. [FN5] This two-party trust lacks a separate trustee. The settlor cannot contract with himself or herself, and


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accordingly, we see that trust can arise without contract, without the characteristic dealbetween settlor and third-party trustee. Because the declaration of trust dispenses with whatis normally the most desirable attribute of the trust, that is, the ability to *628 have a thirdparty manage the trust property, the declaration of trust plays a relatively peripheral role inmodern practice. In order not to interrupt the main theme of this Article, I discuss the

declaration of trust in an appendix. I explain that the declaration sometimes serves as a waystation to the creation of a true third-party trust, and that in other settings the declarationturns out to be a doctrinal ruse for validating transfers that are not in function trusts.

The contractarian theme. This Article sets forth the grounds for understanding theconventional three-party trust as a prevailingly contractarian institution. More is at stake inthis choice between contract and property formulations of the trust than mere labelling. InPart IV of this Article, I explain why the law of fiduciary administration, which is thecenterpiece of the modern trust, is overwhelmingly contractarian. Especially in conflict-of-interest cases, greater attention to the contractarian character of the trust would improveoutcomes. [FN6]

Sensitivity to the contractarian character of the trust can be traced to Maitland's celebratedlectures on Equity, [FN7] published posthumously in 1909. Even in the late fourteenthcentury, observed Maitland, when the English Chancellor first began to enforce the trust,the trust "generally ha[d] its origin in something that we can not but call an agreement."[FN8] "[The] trust was originally regarded as an obligation, in point of fact a contractthough not usually so called." [FN9] F.H. Lawson, writing in 1953 in one of the centralworks of modern comparative law, pointed out that "the three- cornered relation of settlor,trustee, and [beneficiary] ... is easily explained in the modern law in terms of a contract forthe benefit of a third party." [FN10]

Our black letter law has resisted the insight that trusts are contracts. The secondRestatement of 1959, carrying forward the language of the first Restatement of 1935,[FN11] declares: "The creation of a trust is conceived of as a conveyance of the beneficialinterest in the trust property rather than as a contract." [FN12]

...History. There was always a component of contract in the trust relationship, but profoundchanges in the character and function of the trust from the second half of the nineteenthcentury onward have intensified the *629 contractarian basis of the trust. The trustoriginated as a conveyancing device for holding real property, often ancestral land. Themodern trust has become a management regime for a portfolio of financial assets.

...Function. Part IV of the Article develops the intrinsic functional correspondence betweencontract and trust. The bedrock elements of contract are consensual formation andconsensual terms. Trust displays both. I follow for trust the insights of the law-and-economics literature, which has emphasized the contractarian basis of fiduciary duties inmodern corporation law. I concentrate on the two central duties of trust fiduciary law,loyalty and prudence. My theme is that, despite decades of pulpit-thumping rhetoric about


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the sanctity of fiduciary obligations, fiduciary duties in trust law are unambiguouslycontractarian. The rules of trust fiduciary law mean to capture the likely understanding ofthe parties to the trust deal, which is why both the duty of loyalty and the duty of prudenceyield to the more particularized intentions that the parties may choose to express or implyin their trust deal. I depict the default regime of trust law as a type of standardized contract,

and I point to some instances in which the contractarian perspective should improveoutcomes in trust law.

...It is not my purpose to fold the law of trusts into the law of contract. Like other legalinstitutions that have been deeply influenced by modern contractarian analysis, such as thecorporation or the marriage, the trust has an institutional integrity and convenience thatfully justifies its independence. My purpose is simply to show that contractarian analysisillumines, and at times helps us improve upon, what we do with the trust.

...

Excerpt from:The Functions of Trust Law: A Comparative Legal and Economic Analysisby Henry Hansmann, Ugo MatteiNew York University Law Review, May, 1998, 73 N.Y.U.L. Rev. 434p.438-445

I

Contrasting Approaches to Trust-Like Relationships

In a prototypical Anglo-American trust, three parties are involved: the "settlor" transfersproperty to the "trustee," who is charged with the duty to administer the property for thebenefit of the "beneficiary." Any of these three roles may be played by more than oneperson. Also, the same person may play more than one of the three roles. In particular, thesettlor and the beneficiary may be the same person, in which case the trust involves asimple delegation of responsibility for managing property from the settlor/beneficiary tothe trustee.

Since, in what follows, we shall often be concerned with efforts to construct trust-likerelationships in the absence of trust law, it will be helpful to have generic labels for thethree characteristic parties to such relationships - labels that do not carry with them thelegal implications of the terms "settlor," "trustee," and "beneficiary." Consequently, unlesswe are clearly talking about a situation in which the law of trusts applies, we shall refer tothe three parties to a trust-like relationship as the "Transferor" (who performs the settlor-like role), the "Manager" (who performs the trustee-like role), and the "Recipient" (whooccupies the beneficiary-like role). Likewise, we shall refer to the property that theTransferor transfers to the Manager, to be managed on behalf of the Recipient, as the"Managed Property."

A. The Common Law Approach


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The Anglo-American concept of the trust, together with the equity jurisprudence of whichit forms a part, is the fortuitous product of the peculiar historical path followed by Englishlaw. The writ system, around which the jurisdiction of the common law courts wasorganized during the reign of Henry II, became rigid toward the end of the thirteenth

century, largely precluding the creation of new writs. All common law remedies had to beworked out within the structure of the existing writs. At the time, covenants were notenforceable unless made under seal, and remedies like injunctions and specificperformance were unavailable. With the exception of the obsolete legal procedures of thewrit of right, the pecuniary award was the only remedy available in a court of law, and itwas available for only a very limited number of causes of action. n12 According to theconventional account, the writ system led to frequent acts of injustice, and when thesituation became intolerable, the Chancellor began to grant relief in the form of inpersonam orders to the wrongfully sanctioned defendant. n13 By the fifteenth century, theCourt of Chancery had formed and developed its own remedial devices. The dual commonlaw/equity system, typical of Anglo-American law, was born. n14

Prior to the intervention of equity, an effort to create an enforceable trust-like relationshipunder the common law would have failed. The Manager would have become the full ownerof the Managed Property and her obligation to administer that property for the advantage ofthe Recipient would have been purely moral: Because she was the full owner, neither theTransferor nor the Recipient could have claimed anything against the Manager in acommon law court. In contrast, equity ultimately recognized that, while the Manager wasthe owner at law, her right was restricted by another property interest, that of the Recipient.n15 Recipients therefore were provided with equitable remedies against an unfaithfulManager. This system of rights and remedies was described by saying that the Manager(trustee) had legal ownership, while the Recipient (beneficiary) had equitable ownership.n16

This subdivision of property rights caused little conceptual difficulty in the common lawsystem, which, from an early stage, recognized that property rights need not beconcentrated in the hands of a single owner, but rather could be divided among more thanone individual, either in time (estates) or in content (incidents of tenure). Since thebeneficiaries were considered property owners, and not holders of mere contractual rights,it naturally followed that they could claim their interests against everybody (except againsta purchaser for value without notice of the trust) and obtain proprietary remedies. On theother hand, since the trustee held legal title to the trust property, his transfers of propertywere not impaired by the existence of the trust. n17

Rather, when the trustee exchanged the trust property for other property, the beneficiary'sinterest and the trustee's duties attached to the new property received in the exchange.Moreover, if the trustee wrongfully transferred trust property to somebody other than apurchaser in good faith without notice of the trust, then, through the remedy called"tracing," the beneficiary's property interest continued to attach to the transferred property,and the transferee was considered to hold the property and all of its proceeds in trust for thebeneficiary, who was the equitable or beneficial owner of the property. n18


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B. The Civil Law Approach

Continental law evolved along a very different path. The development of the law was not inthe hands of practitioners organized around a centralized system of justice. n19 Rather,

academic lawyers in the universities were the leading force in the development of the law.The law itself was to be found not in a register of writs, but in the Justinian compilation.n20 A dual legal system never arose. A general theory of contract as a source of obligationswas developed early on by scholars, and the notion of obligation remained central tocontinental legal theory. Consequently, in the continental legal tradition it was obligationthat played the most important role in framing trust-like arrangements. n21 This wasfacilitated by the fact that, in the continental systems, the remedy of specific performancecame to be available for the enforcement of any kind of obligation arising from contract,delict, or unjust enrichment. n22

Despite its substantial generality and flexibility, however, the civil law of obligations did

not evolve to fully encompass trust-like arrangements. On the contrary, the civil lawdeveloped important taboos that would be violated by trust law rules of the form thatevolved in England. In particular, trust doctrine runs counter to the so called unitary theoryof property rights. n23 During the French revolution, divided property rights came to beconsidered characteristic of feudalism. As a consequence, it was thought that the number ofrestricted property rights had to be strictly controlled and limited. The numerus clausustheory was developed, stating that divided interests in property must be strictly confined toa small number of well-defined types, such as servitudes on real property, mortgages, andusufructs. n24 Although this theory was largely the product of the folklore and ideology ofthe French revolution and lacked a well articulated general rationale, it enjoyed tremendoussuccess and continues to have a strong influence on the civil law. Since the particulardivision of property rights embodied in the private trust cannot be fit within any of thelimited forms of divided property rights recognized by the civil law, the trust has beenconsidered an impermissible arrangement. n25

This is not to say that European law makes no provision for the formation of trust-likerelationships. n26 To begin with, European law has various special purpose institutions thatserve as substitutes for the trust in certain well-defined situations. These include, forexample, special guardianship institutions to manage assets on behalf of minors orincompetents. n27 In addition, for a more general class of transactions that do not fallwithin the narrow confines of these special institutions, contractually based relationshipscan be established that have some of the attributes of a trust.

The most general of these relationships is the "romanistic fiduciary transaction," or fiducia.This device is essentially a creation of legal scholars that has found its way into the caselaw, rather than a relationship explicitly recognized by the civil codes. n28 It is typicallycreated by means of a contract between the Transferor and the Manager. In theparadigmatic case, the Transferor formally transfers the property involved to the Manager,who becomes the legal owner of the property, while at the same time the two parties enterinto a contract under which the Manager becomes the agent of the Transferor and promises


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to manage the property for the benefit of the Recipient, who becomes a third partybeneficiary of the contract. Because, following the dictates of the civil law regime, theRecipient has no property rights in the Managed Property, enforcement of the Transferor'scontract with the Manager is the only means of control over the Managed Property that isavailable to either the Transferor or the Recipient. Nevertheless, since that contract can be

specifically enforced under the law of European civil law countries, the Recipient canobtain a degree of protection that is similar in some respects to the protection available inthe common law trust. For example, he can regain possession of the Managed Propertyupon the expiration of the arrangement as long as the property still remains in theManager's possession - that is, it has not been transferred by the Manager to a third partypurchaser.

Under this arrangement, the Manager is the sole owner of the Managed Property. Thismeans that she has the capacity to transfer it or otherwise contract for its use in any way.The natural consequence is that a third party who acquires Managed Property from anunfaithful Manager is always protected, even when he knows that the Manager is acting in

bad faith. To deal with this problem, legal theory and case law have evolved in some civillaw countries to provide trust-like remedies through which the Managed Property cansometimes be recovered from a third party who acquired it in bad faith from an unfaithfulManager, though the scope of this protection is generally not as broad as that afforded bythe trust. n29 Another important difference between the fiducia and the common law trustinvolves the treatment of insolvency - a subject we shall return to in detail below.

Strong evidence that the fiducia and other civil law institutions for establishing trust-likerelationships n30 do not provide completely adequate substitutes for the common law trustcan be found in the fact that, despite the very peculiar institutional setting in which the lawof trusts developed, the trust has come to be adopted in a number of jurisdictions beyondthe core common law countries. n31 Further evidence can be found in The HagueConvention on the Law of Trusts, to which a group of civil and common law countriesbecame parties in 1985. n32 The Convention establishes choice of law rules providing forrecognition, in nontrust jurisdictions, of trusts and trust law from foreign jurisdictions. Theprincipal rationale for the Convention, as well as the principal difficulty in its drafting andthe principal source of resistance to its adoption, was the general absence in civil lawcountries of legal institutions analogous to the common law trust. n33

***************__________________________________***********************Fiduciary Duty Law & Legal DefinitionFiduciary duty is a legal requirement of loyalty and care that applies to any person ororganization that has a fiduciary relationship with another person or .http://definitions.uslegal.com/f/fiduciary-duty/

Fiduciary Duties


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The New Palgrave Dictionary of Economics and the Law, Definition of "fiduciary duties"by Tamar Frankel Vol.2, p.127-128. fiduciary duties. Fiduciary duties fall .http://cyber.law.harvard.edu/trusting/unit5all.html

Motherboard BIOS Initializes Itself

The Motherboard BIOS sends the following to the screen:fiduciary duty legal definition of fiduciary duty. fiduciary duty ...An individual in whom another has placed the utmost trust and confidence to manage andprotect property or money. The relationship wherein one person has .http://legal-dictionary.thefreedictionary.com/fiduciary+duty

Fiduciary responsibilityMay 31, 2009 . III. Key findings. Part I Legal commentary on fiduciary duty and theimplementation of. ESG in investment mandates. Recognised fiduciary law .http://www.unepfi.org/fileadmin/documents/fiduciaryII.pdf

SCSI Controller BIOS InitializesThe SCSI controller BIOS sends the following to the screen:

Adaptec AHA-2940 Ultra/Ultra W BIOS v 1.23(c) 1996 Adaptec, Inc. All Rights Reserved.


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Oct 25, 2001 . The Law of Fiduciary Duties. With Citations to the California Authorities.by Rafael Chodos, Esq. (c) 2000. NOVEMBER 2011: The hardcover .http://www.blackthornelegal.com/

Business Laws : What Is a Fiduciary Duty? - YouTube

Nov 1, 2008 . A fiduciary duty in business is a service relationship where an individualwho owes a duty to a person empowering the trust, performs a service.http://www.youtube.com/watch?v=px5ioIgioLQ

Fiduciary Duty | LII / Legal Information InstituteDefinition. A fiduciary duty is a legal duty to act solely in another party's interests. Partiesowing this duty are called fiduciaries. The individuals to whom they owe .http://www.law.cornell.edu/wex/fiduciary_duty

Contract and Fiduciary Duty in Corporate LawContract and Fiduciary Duty in Corporate Law. Victor Brudney. This Article is brought toyou for free and open access by the Law Journals at Digital Commons .http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2072&context=bclr

Breach of Fiduciary Duty - The Legal PractitionerBreach of Fiduciary Duty. People in a position of trust or fiduciary relationship, such asofficers, directors, high-level employees of a corporation or business, .http://legal.practitioner.com/regulation/standards_9_3_6.htm

OS/2 BootManager MenuFiduciary Responsibility of Association Directors: Practical ...The law of fiduciary responsibility can be viewed as having two purposes. The first ismoral or educational in nature. The law sets a standard for appropriate .http://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.shtml

Law Reviews | Fiduciary DutiesIn a law review article published 50 years ago, Cambridge law professor L.S. Sealyreviewed two centuries of English case law on fiduciary relationships.http://fiduciarydutiesblog.com/category/law-reviews/

"Fiduciary / F. Duty" Defined & Explained - Lectric Law LibraryDefinition of "Fiduciary / F. Duty" from the 'Lectric Law Library's Legal Lexicon.http://www.lectlaw.com/def/f026.htm
http://www.law.cornell.edu/wex/fiduciary_dutyhttp://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2072&context=bclrhttp://legal.practitioner.com/regulation/standards_9_3_6.htmhttp://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.shtmlhttp://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.shtmlhttp://www.lectlaw.com/def/f026.htmhttp://www.law.cornell.edu/wex/fiduciary_dutyhttp://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=2072&context=bclrhttp://legal.practitioner.com/regulation/standards_9_3_6.htmhttp://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.shtmlhttp://www.hoa-law.com/publications/fiduciary-responsibility-of-association-directors.shtmlhttp://www.lectlaw.com/def/f026.htm


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Fiduciary Duty in Transitional Civil Law Jurisdictions Lessons from ...Oct 24, 2002 . In Anglo-American law, fiduciary duty is the core legal concept to addressconflicts among directors/managers and shareholders. The concept .http://www.ssrn.com/abstract_id=343480

Breach of Fiduciary Dutyhis or her fiduciary duties to a client. A claim for breach of fiduciary duty is generallybased upon state law, although at least one federal statute may give rise to .http://www.pli.edu/product_files/EN00000000000595/89176.pdf

Breach of Fiduciary Duty in Legal Malpractice Gets Fees - Blog ...A lawyer's breach of fiduciary duty alleged in a Legal Malpractice case refunds legal fees,or, disgorges fees from the lawyer. Alleging only a legal malpractice .http://www.appellate-brief.com/blog/entry/breach-of-fiduciary-duty-in-legal-malpractice-

gets-fees.html

Lilo is startedIf the BigLinux

Oregon Fiduciary Duty - Brague Law - Oregon Education LawIf you invest unwisely or imprudently, then you will likely be found to in breach of yourfiduciary duties to your mother-in-law and will likely be liable for her losses.http://www.braguelaw.com/5.html

Lilo prints

LILOFiduciary Responsibility of Association Board ... - Third Street LawJan 12, 2012 . Board members of Homeowner Associations, just like corporate directors,have what is called a fiduciary duty to the members of the .http://thirdstreetlaw.com/2012/01/fiduciary-responsibility-of-board-members-and-potential-liability/

Minority Shareholder/Fiduciary Duty Mass Law BlogU.S. District Court Judge William Young's recent decision in Talentburst, Inc. v. Collabera,Inc. is worth study. Talentburst is the former employer of Raj Pallerla.http://masslawblog.com/minority-shareholderfiduciary-duty/

Breach of Fiduciary Duty - Business Lawyers Smith GargFiduciary duty is a special type of duty owed where there has been a special relationshipcreated between individuals or between an individual and an entity.http://www.smithgarglaw.com/articles-breach-of-fiduciary-duty.html
http://www.ssrn.com/abstract_id=343480http://www.pli.edu/product_files/EN00000000000595/89176.pdfhttp://www.appellate-brief.com/blog/entry/breach-of-fiduciary-duty-in-legal-malpractice-gets-fees.htmlhttp://www.appellate-brief.com/blog/entry/breach-of-fiduciary-duty-in-legal-malpractice-gets-fees.htmlhttp://www.ssrn.com/abstract_id=343480http://www.pli.edu/product_files/EN00000000000595/89176.pdfhttp://www.appellate-brief.com/blog/entry/breach-of-fiduciary-duty-in-legal-malpractice-gets-fees.htmlhttp://www.appellate-brief.com/blog/entry/breach-of-fiduciary-duty-in-legal-malpractice-gets-fees.html


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The following line is from /boot/message:

>> PressFiduciary Duty Of Doctor And Patient | LegalMatch Law Library

May 11, 2011 . Find Fiduciary Duty Of Doctor And Patient and Attorneys in your area. Adoctor has a fiduciary duty of confidentiality towards a patient.http://www.legalmatch.com/law-library/article/fiduciary-duty-of-doctor-and-patient.html

The following line is the prompt from /sbin/lilo:boot:Note: If Lilo is not used, then the boot code built into the head of the Linux kernel,linux/arch/i386/boot/bootsect.SLegal Duties of Association Board Members - Whitepapers ...The following article is designed to clarify the delegation of duties, explain the fiduciary

duties imposed by law on association officers and directors, and suggest .http://www.asaecenter.org/Resources/whitepaperdetail.cfm?ItemNumber=12217

Fiduciary in California. Who is a fiduciary? What are fiduciary duties?Fiduciary duties arise as a matter of law "in certain technical, legal relationships." (GABBusiness, supra, 83 Cal.App.4th at p. 416.) While this list of special .http://www.christian-attorney.net/fiduciary_california.html

Linux-2.2.12Breach of a Fiduciary Duty Ernst Law GroupBreach of A Fiduciary Duty is a business tort that occurs when there is a position of trustbetween someone and the business. A fiduciary duty is a legal .http://www.ernstlawgroup.com/breach-of-a-fiduciary-duty/

lilo.conf.TRUST AND FIDUCIARY DUTY IN THE EARLY COMMON LAWof another party, a beneficiary.1 Fiduciary duties are duties enforced by law and imposed .put trust and fiduciary duty at the heart of modern law. In her honor .http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/SEIPP.pdf

The Linux Kernel InitializesThe kernel code in /linux/arch/i386/boot/setup.SCommon Law Casebook - Fiduciary DutiesDirectors and officers have a fiduciary relationship with the corporation, resulting in a dutyof care to avoid harm to the corporation, a duty of loyalty by placing the .http://www.translegal.com/common-law-casebook/fiduciary-duties

Trampoline.S and Trampoline32.SGeneral counsel, fiduciary duties under Delaware law - The Deal ...


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Oct 5, 2011 . Three recent cases confirm that the position of general counsel in the moderncorporation has become more challenging.http://www.thedeal.com/content/regulatory/general-counsel-fiduciary-duties-under-delaware-law.php

zImageBreach of Fiduciary Duty | Utah Business Lawyer | Stavros Law, P.C.Accused of or harmed by a breach of fiduciary duty in Salt Lake County, Utah? CallStavros Law, P.C., to consult free with a proven attorney: 801-428-0719.http://www.stavroslaw.com/Commercial-Business-Litigation/Breach-of-Fiduciary-Duty.shtml

bzImageWhat Does Fiduciary Duty Mean? | Home Guides | SF GateA fiduciary may be an agent, a broker, an attorney or a legal guardian who has a . back toRoman law, which recognized the duties of a "fiduciary" to deliver an .

http://homeguides.sfgate.com/fiduciary-duty-mean-6753.html

linux/arch/i386/head.S at its start), printing the following 2 lines fromlinux/arch/i386/boot/compressed/misc.cFiduciary Duties of Trustees | LII / Legal Information InstituteTrustees have certain legal duties in relation to the management of the trust. The mostimportant duty is the duty of loyalty. Since trustees are the legal owners of .http://www.law.cornell.edu/wex/fiduciary_duties_of_trustees

The i386-specific setup.SAtlanta, Georgia Breach of Fiduciary Duty Attorney :: Breach of ...The Adams Law Offices, LLC - Atlanta, Georgia Breach of Fiduciary Duty Attorney -Marietta, Georgia Trust Fraud Lawyer.http://www.atlantabusinesslitigationlawyer.com/lawyer-attorney-1766641.html

Processor, Console, and Memory Initialization

This runs linux/arch/i386/head.S which in turn jumps to start_kernel(void) inlinux/init/main.cExecutor and Administrator Responsibility and AccountabilityOnce appointed, the executor or administrator of an estate has fiduciary duties which areimposed under Georgia law. The fiduciary duties imposed by Georgia .http://www.duncanadamsattorney.com/lawyer-attorney-1510550.html

linux/kernel/module.c

Colorado Homeowners Association Law Blog: Fiduciary Duties of ...Fiduciary duties arise from special relationships that the law recognizes. Examples offiduciary relationships include doctor-patient, attorney-client, .


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http://www.cohoalaw.com/governance-fiduciary-duties-of-board-members-an-overview.html

From this point on the kernel messages are also saved in memory and available using/bin/dmesg

Breach of Fiduciary Duty - Minneapolis, MN - The Kuhn Law FirmBreach of Fiduciary Duty Minneapolis Business Law. Fiduciary duties arise where oneperson (i.e., the agent) agrees to act for and on behalf of another (i.e., .http://thekuhnlawfirm.com/business-and-corporate-litigation/breach-of-fiduciary-duty/

/var/log/messageBoston Practice Areas - Connecticut Business Law FirmCall 860-266-4925 to talk to a lawyer at Raymond Law Group LLC in . Breach of Contract& Interference with Contracts Breach of Fiduciary Duty Business .http://www.raymond-bennett.com/CM/Custom/TOCBoston.asp

linux/init/version.c:Natural Law and the Fiduciary Duties of Business Managers*The Nature of Fiduciary Duty. Professor Austin Scott, who for many years was theleading American scholar in the field of trust law, wrote in 1949 an important .http://www.acton.org/sites/v4.acton.org/files/pdf/8.1.27-51.ARTICLE.Johnston,%20Joseph,%20F.--Natural%20Law%20and%20the%20Fiduciary%20Duties%20of%20Business%20Managers.pdf

console_init(..) in linux/init/main.c causes the following line from linux/drivers/console.cto be printed:Console: colour VGfiduciary duty in law+ 132x60calibrate_delay() in linux/init/main.c prints the following line:FIDUCIARY DUTIES AND OTHER RESPONSIBILITIES OF ...FIDUCIARY DUTIES AND OTHER RESPONSIBILITIES OF. CORPORATEDIRECTORS AND OFFICERS ration Law (the DGCL) to bind the corporation; .http://www.rrdonnelley.com/financial/Downloads/PDF/Fiduciary_Duties_and_Other_Responsibilities_of_Corporate_Directors_and_Offiers.pdf

mem_init() in linux/init/main.c causes the following line from linux/arch/i386/mm/init.c tobe printed:Memory: 127952k/131008k available (952k kernel code, 412k reserved, 1652k data, 40kinit)buffer_init() in linux/init/main.c causes the following line from linux/arch/i386/mm/fault.cto be printed:Fiduciary Duty vs. The Three Laws of Robotics - Kent Pitman - Open ...Feb 2, 2009 . Fiduciary Duty vs. The Three Laws of Robotics. Rate: 19 Flag. Email. Click" Submit Abuse" if you feel this post is inappropriate. Explain why .


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http://open.salon.com/content.php?cid=98229

check_bugs() in /linux/init/main.c causes the following lines from linux/include/asm-i386/bugs.h to be printed:

Fiduciary Duties Delaware Corporate Law UpdateMar 5, 2012 . Today the Court of Chancery released a memorandum opinion (availablehere) rejecting much of defendants' summary judgment motion in a .http://evanwilliford.wordpress.com/category/fiduciary-duties/

PCI Bus Initialization

mpci_init() in linux/init/main.c causes the following lines fromlinux/arch/i386/kernel/bios32.c to be printed:Separation of Fraud, Breaches of Fiduciary Duty and Contract ...

[T]he duty tortiously or negligently breached must be a common law duty, not one . fraudin the inducement and breach of fiduciary duty against the agent.http://www.mhlrt.com/articles/articles_lowry_dutycontract.htm

pci_init() in linux/init/main.c causes the following line from linux/drivers/pci/pci.c to beprinted:PCI: Probing PCI hardwarelinux/drivers/quirks.c prints the following:Fiduciary Duty in Transitional Civil Law JurisdictionsIn Anglo-American law, fiduciary duty is the core legal concept to address conflicts .Keywords: incomplete law, transition economies, fiduciary duty, law .http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.196.6078&rep=rep1&type=pdf

Network Initialization

socket_init() in linux/init/main.c causes the following network initializations:linux/net/socket.c prints:

Default Fiduciary Duties in Delaware LLCs - Conglomerate Blog ...Feb 16, 2012 . In 2009 Chief Justice Myron Steele of the Delaware Supreme Court wrote alaw review article arguing "that default fiduciary duties violate the .http://www.theconglomerate.org/2012/02/default-fiduciary-duties-in-delaware-llcs.html

linux/net/unix/af_unix.c prints:Portland Breach of Fiduciary Duty Lawyer - The Mead Law Firm P.C.Experienced counsel in breach of fiduciary duty claims. Contact the Mead Law Firm, inWest Linn, Oregon, to schedule an appointment.


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http://www.meadsmith.com/Business-Law/Breach-of-Fiduciary-Duty-Partnership-Disputes.shtml

linux/net/ipv4/af_inet.c prints:

Estate Attorney Florida Breach of Fiduciary Duty/ Heir ...Under Florida law, a fiduciary duty exists whenever a person places confidence or trust inanother person regarding a particular transaction or in financial affairs, .http://www.florida-probate-lawyer.com/litigation/breach-of-fiduciary-duty-heir-beneficiary-rights/

linux/net/ipv4/ip_gre.c prints:GRE over IPv4 tunneling driverlinux/net/core/dev.c prints:early initialization of device gre0 is deferred

linux/net/core/rtnetlink.c prints:Initializing RT netlink socketThe Kernel Idle Thread (Process 0) is Started

fiduciary duty in lawt this point a kernel thread is started running init() which is one of theroutines defined in linux/init/main.cTRUST PROTECTORS, AGENCY COSTS, AND FIDUCIARY DUTYramifications for fiduciary duty law. 10 See generally Robert C. Ellickson, AdversePossession and Perpetuities Law: Two Dents in the Libertarian Model of .http://www.cardozolawreview.com/pastissues/sterk.website.pdf

init() must not be confused with the program /sbin/initFiduciary Duty Breaches Lawyer, Attorney, Breach of Fiduciary Duty ...The fiduciary breach of duty lawyers at the Burk Law Firm understand the complexities offiduciary relationships and can help you fight back if you've been a .http://www.burklaw.com/fiduciary-duty-breaches/

mkswapd_setup() in linux/init/main.c causes the following line from linux/mm/vmscan.c tobe printed:Sayles | Werbner - Breach of Fiduciary Duty LitigationSayles Werbner has an international reputation as a 'go to' trial law firm in complexbusiness litigation, catastrophic personal injury cases, product safety .http://www.swtriallaw.com/news-and-events/breach-of-fiduciary-duty-lititgation.html

Device Driver Initialization

The kernel routine linux/arch/i386/kernel/setup.cBoard of Director Fiduciary Duties


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Board of Director Fiduciary Duties. This article reviews directors duties in the privatecompany context. Board of director duties and responsibilities are briefly .http://www.shajlaw.com/media/reports/BoardofDirectorFiduciaryDuties.pdf

/sbin/init:

Generic Parallel Port Initialization

The parallel port initialization routine linux/drivers/misc/parport_pc.c prints the following:parport0: PC-style at 0x378 [SPP,PS2,EPP]Character Device Initializations

The following 3 lines are from linux/drivers/char/serial.c:CORPORATIONS: A Manager's Fiduciary Duty Under the Delaware ...Apr 4, 2012 . Legal research on corporations law. "A Manager's Fiduciary Duty Under theDelaware LLC Act," by Charlene Hicks, National Legal Research .http://www.nlrg.com/business-law-legal-research/bid/76749/CORPORATIONS-A-

Manager-s-Fiduciary-Duty-Under-the-Delaware-LLC-Act

The following line is from linux/drivers/char/lp.c:Law at the End of the Day: Edward Waitzer on Fiduciary Duty and ...Mar 6, 2012 . The subject of the article is sustainability and fiduciary duty, andconsequently on welfare maximization and the mechanics of legal, social and .http://lcbackerblog.blogspot.com/2012/03/edward-waitzer-on-fiduciary-duty-and.html

linux/drivers/char/rtc.c prints:Fiduciary Duties and Potential Liabilities of Directors and Officers of ...Duty of Care; Duty of Loyalty. Under state corporate law, directors of solventcorporations have two basic. fiduciary duties, the duty of care and the duty of .http://apps.americanbar.org/buslaw/newsletter/0003/materials/tip3.pdf

Block Device Initializations

linux/drivers/block/rd.c prints:Rfiduciary duty in lawM disk driver initialized: 16 RAM disks of 8192K sizelinux/drivers/block/loop.c prints:loop: registered device at major 7linux/drivers/block/floppy.c prints:Incorporating State Law Fiduciary Duties into the Federal Insider ...result, assuming state law provides the requisite fiduciary duty, one can plausibly .examining the implications of adopting state law fiduciary duty concepts as .http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1740&context=wlulr


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SCSI Bus Initialization

The following lines are from aic7xxx.c, scsi.c, sg.c, sd.c or sr.c in the subdirectorylinux/drivers/scsi:(scsi0)

Re-Examining Legal Transplants: The Director's Fiduciary Duty in ...Fiduciary Duty in Japanese Corporate Law. INTRODUCTION. The transplantation oflegal rules from one country to another is commonly observed around the .http://www.jstor.org/stable/3649132

Amazon.com: Fiduciary Duty and the Atmospheric Trust (Law, Ethics ...Charles Sampford, Foundation Dean, Law School at Griffith University and laterfoundation director of the Key Centre for Ethics, Lord Justice and Governance.http://www.amazon.com/Fiduciary-Atmospheric-Trust-Ethics-Governance/dp/1409422321

CITES BY TOPIC: fiduciary dutyAug 16, 2009 . Black's Law Dictionary, Sixth Edition, p. 625: Fiduciary duty. A duty to actfor someone else's benefit, while subordinating one's personal .http://famguardian.org/TaxFreedom/CitesByTopic/FiduciaryDuty.htm

Case law | Fiduciary DutiesA recent case illustrates the need for a beneficiary to exercise care when making a bid at atrustee sale. In Biancalana v. TD Service Company (Oct. 31, 2011) .http://fiduciarydutiesblog.com/category/case-law/

Breach of Fiduciary Duty - Los Angeles Business Law AttorneyHas someone failed in their fiduciary duty to you? Get a Los Angeles business lawattorney from the firm to examine your case and seek remuneration.http://www.businesslawlosangelesca.com/Business-Law/Breach-of-Fiduciary-Duty.aspx

TORT LITIGATION: FIDUCIARY DUTIES OF SPOUSES AND NON ...FIDUCIARY DUTIES OF SPOUSES. AND NON-PHYSICAL TORTS. EDWIN J.( TED) TED TERRY, JR. KARL E. HAYS. ANDREA (ANDI) FOLTZ. Law Offices of .http://www.utcle.org/eLibrary/preview.php?asset_file_id=1794

Initialization of Kernel Support for Point-to-Point Protocol

The following initialization is done by linux/drivers/net/ppp.c which prints:Phoenix AZ Breach of Fiduciary Duty Attorney | Scottsdale Arizona ...Arizona estate dispute or allegations? Call 602-639-4618 for counsel from a provenPhoenix breach of fiduciary duty lawyer at the Starr Law Firm, PLC.http://www.delougherylaw.com/Trust-and-Probate-Administration/Breach-of-Fiduciary-Duty.shtml


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Examination of Fixed Disk fiduciary duty in lawrrangement

The following lines are from linux/drivers/block/genhd.c:

Partition check:sda: sda1 < sda5 sda6 sda7 > sda2 sda3 sda4sdb: sdb1 < sdb5 >

Construction Contracts, Fiduciary Duty and Fraud | Construction Law ...Oct 25, 2010 . Christopher G. Hill, LEED AP and Virginia construction lawyer discusses arecent case in which the Fairfax Virginia Circuit Court discusses a .http://constructionlawva.com/construction-contracts-fiduciary-duty-fraud/

Meeting Your Fiduciary Responsibility - United States Department of ...It provides a simplified explanation of the law and regulations. . Diversification another

key fiduciary duty helps to minimize the risk of large investment .http://www.dol.gov/ebsa/publications/fiduciaryresponsibility.html

Init Program (Process 1) StartupThe program /sbin/init is started by the "idle" process (Process 0) code in linux/init/main.cVelasco on Aspiration and Corporate Fiduciary DutiesFeb 5, 2012 . Of particular concern is the increasing popularity, in legal and scholarlycircles, of the notion that fiduciary duty standards of conduct are .http://lawprofessors.typepad.com/securities/2012/02/velasco-on-aspiration-and-corporate-fiduciary-duties.html

/sbin/init then completes the initialization by running scripts and forking additionalprocesses as specified in /etc/inittabFiduciary Duties in Divorce - Roseville Family Law Attorney | Rocklin ...If you are going through a divorce, you or your spouse may need to comply with certainfiduciary duties. To learn more, contact us at 916-797-1575.http://www.cecilcianci.com/Family-Law/Fiduciary-Duties-in-Divorce.html

Delaware Fiduciary Duty Law After QVC and Technicolor: A Unified ...Boston College Law School Faculty Papers. 1-1-1994. Delaware Fiduciary Duty LawAfter QVC and. Technicolor: A Unified Standard (and the End of .http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1151&context=lsfp

and reads /etc/inittab, a copy of which follows:New York Breach of Fiduciary Duty Attorney :: Breach of Fiduciary ...Breach of Fiduciary Duty. Some relationships are so close and trusting that the lawimposes special obligations on the persons being trusted, who are called .http://www.newyorklitigator.com/lawyer-attorney-1626209.html


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SAYING I DO TO FIDUCIARY RESPONSIBILITY - Law Firm ...SAYING I DO TO FIDUCIARY RESPONSIBILITY By: Hal Bartholomew, CFLS andBeverly Brautigam, CPA Reprinted from California CPA Volume 73, No.http://www.divorcepage.com/CM/PublicationsandPresentations/Fiduciary-Responsibillity.asp

Breach of Fiduciary Duty - Alcala Law FirmAlcala Law Firm - San Francisco Stockbroker Fraud Lawyer - Menlo Park, CaliforniaBroker Misconduct Attorney.http://www.alcala-law.com/lawyer-attorney-1451596.html

Breach of Fiduciary Duty | Wittenberg Law- Business Finance And ...Breach of Fiduciary Duty. A fiduciary may be defined as a person (or institution) thatprovides a service that requires expertise and is socially important.http://wittenberglawyers.com/legal-services/investment-adviserbroker-misconduct/breach-of-fiduciary-duty/

Texas Breach of Contract Lawyer | Houston Fiduciary Duty Attorney ...The attorney at The Womack Law Firm handles breach of contract and fiduciary dutycases throughout the Houston, Texas metro area. To set up a consultation .http://www.markwomacklaw.com/PracticeAreas/Breach-Contract-Fiduciary-Duties.asp

:::Fiduciary Duties and Marriage - Palm Desert Family Law LawyerPalm Springs divorce attorney Thurman Arnold wants to make fiduciary dutiestransparent for you.http://www.thurmanarnold.com/Practice-Areas/Fiduciary-Duties-and-Marriage.aspx

Fiduciary Duty - Law Office of Walter S. CowgerAccused of breach of fiduciary duty? Call attorney Walter S. Cowger, in Dallas, Texas, at214-743-4190. More than 35 years of experience.http://www.cowgerlaw.com/Practice-Areas/Fiduciary-Duty.shtml

When this is processed at the very end of the booting process, the following lines areprinted:Fiduciary Definition"A fiduciary duty imposes the highest duty in law on the party holding the duty - thefiduciary - to act altruistically for the sole benefit of the beneficiary, to the .http://www.duhaime.org/LegalDictionary/F/Fiduciary.aspx

Breach of Fiduciary Duty Litigation - Missouri Employment Law ...Attorney Kevin J. Dolley represent clients in breach of fiduciary duty, professionalliability and legal malpractic claims. Attorney Kevin J. Dolley provides .http://www.missouriemploymentlawattorney.com/Labor-and-Employment-Law/Business-Law/Breach-of-Fiduciary-Duty-Litigation.aspx


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Legal Negligence Denver Colorado Lawyer | Breach Fiduciary Duty ...Over 20 years of experience. Attorney Douglas E. Meier, of Meier & Giovanni, inDenver, Colorado, handles legal malpractice claims involving allegations of .http://www.meierandgiovanini.com/Practice-Areas/Negligence-Breach-of-Fiduciary-

Duty.shtml

Upon entering run level 2 it prints:INIT: Entering runlevel: 2Notice how /sbin/init waited for the bootwait action to finish before going to run level 2,the default runlevel specified by the id:2:default: entry in /etc/inittabLegal Malpractice Law Review : Professional Responsibility Case ...Plaintiffs allege that defendants had a duty to disclose this information to them. Issue: Didthe law firm have a fiduciary duty to the limited partners? Ruling: No.http://www.legalmalpracticelawreview.com/

/etc/inittab these are:rc 2/etc/init.d/rc takes the parameter 2 and walks through each link in the directory /etc/rc2.dStockbroker Negligence, Breach of Fiduciary Duty, and Fraud ...Banks Law > Stockbroker Negligence, Breach of Fiduciary Duty, and Fraud . If they fail todo so, and the broker makes a mistake or violates a law or policy, the .http://bankslawoffice.com/stockbroker-negligence-breach-of-fiduciary-duty-and-fraud

/etc/rc.d/rc2.dIllinois Breach of Fiduciary Duty Lawsuit Attorney Chicago Lawyer ...Konicek & Dillon, P.C. is an Illinois breach of fiduciary duty attorneys' office located inChicago, Illinois. As legal malpractice lawyers, they provide legal .http://www.konicekdillonlaw.com/Firm-Overview.shtml

/etc/inittab also specifies that all 6 virtual consoles shall be set up in run level 2:

/sbin/agetty 9600 tty1/sbin/agetty 9600 tty2/sbin/agetty 9600 tty3/sbin/agetty 9600 tty4/sbin/agetty 9600 tty5/sbin/agetty 9600 tty6Each of the agetty's starts a login shell, /sbin/login, and after a log-in, starts /bin/sh which istypically a symbolic link to /bin/bash.Fiduciary Duty Default Standards Applicable to LLCJan 31, 2012 . Auriga Capital Corp. v. Gatz Properties LLC, C.A. No. 4390-CS (Del. Ch.,Jan. 27, 2012), read opinion here. What this Case is Abo ut and Why it .http://www.delawarelitigation.com/2012/01/articles/chancery-court-updates/chancery-explains-basis-for-fiduciary-duty-default-standards-applicable-to-llc/


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For illustrative purposes, I have made my /etc/init.d/rcS script indicate when it is startedand we get the following:

Texas Breach of Fiduciary Duty Lawyer ... - The Kim Law Firm

Do you need to speak with an attorney about a case involving a breach of fiduciary duty?Contact The Kim Law Firm in Houston, Texas. For assistance, contact .http://www.thekimlawfirm.com/PracticeAreas/Breach-of-Fiduciary-Duty.asp

/sbin/login copies the file /etc/issue to the screen before prompting for the user name andpassword:The law governing the termination of a law partner has both ...The fiduciary duty required between law partners has been variously characterizes as oneof the utmost good faith,. 8 one of the utmost good faith and honesty .http://www.outtengolden.com/files/LawPartnerExplusion.pdf

The Bash Shell is StartedThe bash shell, /bin/bashA PHYSICIAN'S FIDUCIARY DUTY TO - Washington University Law ...legal duty to disclose EMRs to their patientsa duty that flows from fiduciary law. As willbe discussed, physicians owe various fiduciary obligations to their .http://lawreview.wustl.edu/inprint/86/5/spinos.pdf

/etc/profile which set the system-wide environment variables:Fiduciary Duties Attorney / Milwaukee Wisconsin ... - Corris LawThe Fiduciary Duties Attorneys at Corris Law are here to aggressively represent you inwhen you need a Business Litigation Lawyer. For free consultation in .http://www.corrislaw.com/practice-areas/fiduciary-duties/

States List Clergy on Sexual Assault & Fiduciary Duty Laws & States ...Nov 8, 2011 . States Listing Clergy on Sexual Assault Laws and Fiduciary Duty Laws andStates with Clergy as Mandatory Reporters Predator List - Child & .http://www.educatingtoendabuse.com/id19.html

Next, Bash executes the script in /root/.profile for user-specific customizations:Miami Elder Law & Abuse Attorney | Breach of Fiduciary Duty ...Call Miami, Florida, financial elder abuse attorney Randy A. Bryant at the Bryant LawFirm, at 888-423-7158, if your elderly loved one was financially abused or .http://www.miamiprobatefirm.com/Elder-Law-Abuse-Fraud-Recovery/

In this case, it merely has the shell execute the script .bashrcINSOLVENCY AND FIDUCIARY DUTIES OF DIRECTORS


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2007), the court concluded that under Delaware law, no fiduciary duties were owed tocreditors when a company was in the zone of insolvency. The court .http://www.bergersingerman.com/articles/files/articles/Eaton/Eaton%20DBR%20Article.DOC

.profile and .bashrc set user-specific customizations, but only .bashrcSEARCH PARAMETERS AND FIDUCIARY DUTIES FOR ... - FrasconaIn most states, fiduciary duties exist as a matter of law in agency relationships, in additionto any other duties or obligations specified in your buyer agency .http://www.frascona.com/resource/oef701buyer.htm

.profileNew York Law School :: nyls law review fiduciary dutyThe Law Review issue contains 11 articles written by speakers from a conference titled,The Delaware Fiduciary Duty of Good Faith after Disney: Meaningful or .http://www.nyls.edu/news_and_events/nyls_law_review_fiduciary_duty/

In my case for root, /root/.bashrc contains:

Advisor Liability for Trustee's Breach of Fiduciary Duty | The Connor ...Feb 9, 2011 . The case turns on many issues, including a relatively clear breach of fiduciaryduty by the Trustee, but it also suggests the attorney advising the .http://jonconnorlaw.com/last-will-and-testament-trusts-estates/advisor-liability-for-trustees-breach-of-fiduciary-duty/

San Francisco Investment Lawyer | Berkeley Breach of Fiduciary ...San Francisco investment lawyer and securities law attorney Jeffrey A. . or a breach offiduciary duty in Minneapolis, securities lawyer Jeffrey A. Feldman can .http://www.jeffreyfeldman.com/

Fitapelli Law | Common Stockbroker Claims | Breach of Fiduciary DutyStockbrokers are required to place the interest of the client first. 'Breach of fiduciary duty'occurs when a broker refuses to do so. Find out if you're eligible for .http://www.stockfraudlawyer.info/common-stockbroker-claims/breach-of-fiduciary-duty.html

Orlando Legal Malpractice Attorney | Central Florida Breach of ...Attorneys have a fiduciary duty to handle your legal matter with great care, honesty andintegrity. If your attorney failed to handle your case with professionalism .http://www.sdtriallaw.com/PracticeAreas/Orlando-Legal-Malpractice.asp

Fiduciary Duties of TrusteesLearn about the fiduciary duties of trustees. Including duties of a trustee to a trust and itsbeneficiaries, particularly regarding investment and financial matters.http://www.mitchell-attorneys.com/legal-articles/fiduciary-duties-of-trustees-in-investment-and-financial-matters/
http://www.mitchell-attorneys.com/legal-articles/fiduciary-duties-of-trustees-in-investment-and-financial-matters/http://www.mitchell-attorneys.com/legal-articles/fiduciary-duties-of-trustees-in-investment-and-financial-matters/http://www.mitchell-attorneys.com/legal-articles/fiduciary-duties-of-trustees-in-investment-and-financial-matters/http://www.mitchell-attorneys.com/legal-articles/fiduciary-duties-of-trustees-in-investment-and-financial-matters/


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New York Breach of Fiduciary Duty Attorney Richard Pu Home

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Some relationships are so close and trusting that the law imposes special obligations on the persons being trusted, who are called

fiduciaries. (The person that reposes trust in the fiduciary is called the cestui que trust.) Such relationships include the relationship that a

lawyer has with his client, a director of a corporation has with the shareholders, partners have with each other, an agent has with his

principal, a sales agent has with the manufacturer, and an accountant has with his customer.

In some cases, even a creditor may owe his debtor a fiduciary duty. Consider, for example, a homeowner who borrows money to buy a

coop apartment. The lender will typically require the homeowner to give the shares in the cooperative building to the lender, a practice

called pledging the shares. If the homeowner defaults in repaying the loan, the lender owes him a fiduciary duty in selling the shares.

That duty may require the lender to use commercially reasonable means to get the best price possible.

And it doesn't matter that a contract may say that a party is an independent contractor. It's the realities of the relationship that governs

whether there is a fiduciary relationship, not the labels put on the relationship by a contract. Thus, for example, in some instances a

franchise agreement may give rise to a fiduciary duty.

The three duties imposed by a fiduciary duty are a duty of care, a duty of loyalty and a duty of honesty. Violating any of those duties may

subject the fiduciary to a law suit. Thus, for example, if a stock broker fails to give an investor information about one of his stocks, the

broker may have violated the duty of care imposed on him by his fiduciary duty to the investor.

One form of a breach of fiduciary duty is called self-dealing, where the fiduciary does something to help himself at the expense of the

other party. For example, if the trustee managing investments in a trust diverts a valuable opportunity away from the trust and into his

own business, that's a form of self-dealing. Similarly, if the manager of a pension fund permits an investment advisor to manage the fund

in return for a bribe, that's a breach of fiduciary duty. If the fiduciary's contract with the beneficiary breaches a fiduciary duty, the law will

refuse to enforce the contract.

The officers and directors of corporations bear a fiduciary responsibility to the corporation and to its shareholders. If the officers and

directors waste corporate assets, that's a breach of fiduciary duty that may subject them to liability.

In addition, the majority shareholder has a fiduciary duty to the minority shareholder. So, let's suppose the majority shareholder refuses to

declare a dividend to force the minority shareholder to sell his interest, that could be a breach of fiduciary duty.

But it isn't just the fiduciary who's liable. Under New York law, a person who induces a breach of fiduciary duty is also liable. This may be

helpful if the fiduciary is judgment proof-- i.e., without the assets to pay a large judgment. Under New York law, the injured party may

sue a relatively peripheral figure that induced the breach, who may have the resources to pay a judgment.

The existence of a fiduciary relationship imposes on the fiduciary a duty to volunteer relevant facts. That is, in an arms-length relationship,neither party is required to volunteer facts. But in a fiduciary relation, the fiduciary is required to disclose relevant facts. Failure to do so

gives rise to a fraud claim. Thus, for example, if a fiduciary is selling real estate to the cestui que trust, the fiduciary is obligated to

volunteer all the relevant facts.

One of the benefits of a fiduciary duty is that it permits the beneficiary of a duty to impose a constructive trust on property in the hands of

the fiduciary. It's like having a mortgage on the property, so that, under certain circumstances, if the property is sold, the beneficiary can

follow the property into the hands of the new owner.

The existence of a fiduciary duty may help people who are strangers to the fiduciary relationship. For example, a guarantor of a loan may

assert any defenses available to the borrower. Thus, if the lender breached a fiduciary duty to the borrower, the guaranty may assert that
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breach in the lender's action on the guaranty.

Another benefit of being able to allege a breach of fiduciary duty is that doing so entitles the plaintiff to seek punitive damages. Unlike

compensatory damages, which seek to compensate, punitive damages are meant to punish and deter recurrence, and are therefore not

limited to the amount of the plaintiff's loss. Thus, a claim of punitive damages enables a plaintiff to increase the size of his claim, and have

a significant bargaining chip in the lawsuit.

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