Robert Flannigan, ‘Fiduciary agency denied’

There is a long running conflict of authority on a fundamental aspect of agency. The conflict is whether every agent, or agent function, is regulated by fiduciary accountability. On one side are numerous conventional cases where agency is described as a status fiduciary relation without qualification. That is, expressly or implicitly, agents are identified as fiduciaries by reason of their status alone in all respects on a default basis. Only through the informed consent of the principal may that accountability be altered or eliminated. On the other side are judicial statements in a variety of cases that deny that every agent is subject to the regulation. Judges have not confronted the evident contradiction of principle. The contradiction has been noted by some modern writers, but the matter generally has received only cursory attention. I will investigate the matter in some depth. I show that there is no historical foundation for the denial of the accountability …

€ (Westlaw)

Robert Flannigan, ‘Fiduciary agency denied’ [2021] Journal of Business Law (1) 50-74.

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