Smith on Prescriptive Fiduciary Duties

Lionel Smith (McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law; University of Oxford – Faculty of Law) has posted Prescriptive Fiduciary Duties ((2018), 37 University of Queensland Law Review 261-287) on SSRN.  Here is the abstract: It has become an orthodoxy in some quarters that fiduciary duties are only proscriptive, forbidding certain actions, and never prescriptive, requiring positive action. I argue that this is a misunderstanding. The argument begins by attempting to explain how this orthodoxy arose, and then by challenging the presuppositions that led to it. The paper goes on to argue that some of the most important duties of a fiduciary are prescriptive duties. It further argues that the label 'fiduciary duties' is properly attached to all of the duties that arise out of a fiduciary relationship, just as 'contractual duties' arise out of a contractual relationship and 'parental…

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