1 Finn, P.D., Fiduciary Obligations (CUP, Cambridge, 1977)Google Scholar, winner of the Yorke Prize.

2 The ‘territory invaded’ is magisterially surveyed by Laura Hoyano, The Flight to the Fiduciary Haven” in Birks, P., ed., Privacy and Loyalty (OUP, Oxford, 1997) 169–248.Google Scholar Hoyano highlights, at 173, the dramatic extension, especially in Canada, to contexts beyond the management of wealth: Norberg v. Wynrib (1992) 92 DLR (4th) 449 (SCO; KM v. HM (1992) 96 DKR (4th) 289 (SCO. Such invasions were encouraged by SirMason, Anthony, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World” (1994) 110 LQR 238.Google Scholar However, the Australian High Court has subsequently shown itself more cautious: Breen v. Williams [1996] 186 CLR 71.

3 The Dean of Law, Prof. Israel Gilead, very kindly made me an English translation of the draft. I take the opportunity to say how badly we need to see more legal materials from Israel, especially judgments, put into English.

4 Finn, P.D., “The Fiduciary Principle” in Youdan, T.G., Equity, Fiduciaries, and Trusts (Carswell, Toronto, 1989) 1, at 24–25.Google Scholar I acknowledge a great debt to this important paper, albeit arriving at different results. Finn seeks to create a hierarchy of different obligations within the sub-class of those “imposed on a person in his voluntary or consensual relationships with another”. At 55 looking back, he finds that hierarchy in standards expressed in ‘unconscionable’, ‘good faith’ and ‘fiduciary’. By contrast the present exercise seeks to locate fiduciary obligations in the class of all obligations. It takes a different view of the core fiduciary obligation, text to nn. 24–26 and to nn. 32–42; and the three-tier hierarchy which it detects is quite different.

5 The habit of throwing fiduciary language at any moral outrage has recently been attacked by Worthington, Sarah, “Fiduciaries: When is Self-Denial Obligatory?” (1999) 58 Cambridge L.J. 500.Google Scholar

6 Bristol and West Building Society v. Motthew [1998] Ch 1 (CA), discussed in text from n. 62; Paragon Finance Pic v. Thakerar & Co [1999] 1 All ER 40 (CA), text to n. 53.

7 Austin, R.P., “Moulding the Content of Fiduciary Duties” in Oakley, A.J., Trends in Contemporary Trust Law (OUP, Oxford, 1996) 153, at 156.Google ScholarCf. Worthington, supra n. 5.

8 Finn, supra n. 4, at 27–29.

9 OED sv ‘rage’. One might have guessed that ‘all the rage’ came from the age of Noel Coward, but the examples go back to the eighteenth century: The European Magazine of 1785 listed among favourite phrases “The Rage, the Thing, the Twaddle, and the Bore”.

10 “And here in our case the countrymen do not know how to use the apt words. For it is not used amongst them to say that ‘in consideration that you will do such a thing, I assume to pay you such or such a sum’, but still the law will make their words to be effectual”, J.H. Baker, “New Light on Slade's Case” Part I [1971] 51, at 55–56.

11 Johnston, D., The Roman Law of Trusts (OUP, Oxford, 1988) 1.CrossRefGoogle Scholar

12 For fides the Oxford Latin Dictionary distinguishes thirteen shades of meaning.

13 This stripped-down encapsulation of the nature of the Anglo-American trust is used in Hayton, D.J., Kortmann, S.C.J.J. and Verhagen, H.L.E., eds., Principles of European Trust Law (Kluwer Law International, The Hague, 1999) Article 1, commentary 38–40 (Hayton).Google Scholar

14 On one disability, which is not an obligation, see the discussion of Re Coomber [1911] 1 Ch 723 (CA) in text to nn. 44 and 48.

15 Speight v. Gaunt (1882) 22 Ch D 727, 739; (1883) 9 App Cas 1 (HL) 19 (Lord Blackburn). The prudent person of business must also bear in mind that the affairs in question are not his but another's: Re Whitley (1886) 33 Ch D 347 (CA) 355 (Lindley L. J.). Most trusts are directed to the financial benefit of the beneficiaries; the trustees must not allow themselves to be distracted by their own political and moral commitments; Cowan v. Scargill [1985] Ch 270. Charitable trustees have some discretion to avoid investments which would impede or contradict the work of the charity: Harries v. Church Commissioners [1992] 1 WLR 1241.

16 Keech v. Sandford (1726) Sel Cas T King 61; Bray v. Ford [1896] AC 44 (HL) 51; cf. Lord Cranworth LC in Aberdeen Ry v. Blaikie (1854) 1 Macq HL 461, 471–72.

17 Boardman v. Phipps [1967] 2 AC 46 (HL) 124 (Lord Upjohn).

18 Harpum adopts Deane J.'s view in Chan v. Zacharia (1984) 154 CLR 178 (HCA) 198–99 that the two rules overlap but are distinct: Harpum, C. “Fiduciary Obligations and Fiduciary Powers” in Birks, P., ed., Privacy and Loyalty (OUP, Oxford, 1997) 145, at 147.Google Scholar Snell says it is part of the wider rule against conflicts: McGhee, John, ed., Snel's Equity (Sweet & Maxwell, London, 13th ed., 2000) 278Google Scholar; but the truth is that, in almost every case, the rule against conflicts defines the profits that may not be taken. Professor Hayton runs the two rules together in such a way as to avoid resolving the question of their precise relationship: Hayton, D.J., Underhill and Hayton on Trusts and Trustees (Butterworths, London, 15th ed., 1995) 646.Google Scholar

19 As in Barclays Bank Ltd v. Quistclose Investments Ltd [1970] AC 567 (HL) 582 (Lord Wilberforce). An earlier example was Sinclair v. Brougham [1914] AC 398 (HL), now overruled by Westdeutsche Landesbank Girozentrale v. Islington LBC [1996] AC 669 (HL). Cf. alienations by directors beyond their powers: Rolled Steel Products (Holdings) v. British Steel Corporation [1986] Ch 246 (CA); Precision Dippings Ltd v. Precision Dippings Marketing Ltd [1986] Ch 246 (CA); Allied Carpets Group Plc v. Nethercott (Colman J., QBD, 28 January 2000).

20 Bristol and West Building Society v. Motthew [1998] 1 Ch 1 (CA) 18 (Millett L.J.), adopted in Arklow Investments v. Maclean [2000] 1 WLR 594 (PC) 598 and relied on in United Pan-Europe Communications NVC v. Deutsche Bank AG [2000] New Law Online Case No 200059004 (CA) para 38–47.

21 Not least in the title of Privacy and Loyalty, supra n. 2. Cf. Finn, supra n. 4, at 28; R.P. Austin, supra n. 7, at 153–54; Worthington, supra n. 5, at 504, 507–08, which mixes ‘loyalty’ and ‘self-denial’. The latter is nearer the mark.

22 Bristol and West Building Society v. Matthew, supra n. 6, at 18: “single-minded fidelity”.

23 ‘Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti possiti every definition is dangerous in law, for all too often they can be overthrown’ (Javolenus D.50.17.202).

24 Austin, John, Lectures in Jurisprudence, Campbell, R., ed. (London, 3rd ed., 1869).Google Scholar Lecture and the notes which follow it, 787–800; cf. 485–87 and 793.

25 Moschi v. LEP Air Services Ltd [1973] AC 331 (HL) 350; Photo Production Ltd v. Securicor Transpon Ltd [1980] AC 827 (HL) 848–9, discussed in Dickson, Brice, “The Contribution of Lord Diplock to the Law of Contract” (1989) 9 JLS 441, at 449.Google Scholar

26 I use ‘wrong’ to denote an event which takes its legal consequences from its characterisation as a breach of duty. The word often does, but need not, connote the presence of fault. See further Birks, P., “The Concept of a Civil Wrong” in Owen, D., ed., Philosophical Foundations of the Tort Law (Oxford, corrected edition, 1997) 29–53.Google Scholar

27 Lev. 19:18, 33.

28 Matthew 22:38, 39; cf. Matthew 19:19; Romans 13:9; Galatians 5:14; James 2:8. In the New Testament the best known text on this theme is Luke 10:25–37, the parable of the good Samaritan, which underlies Lord Atkin's speech in Donoghue v. Stevenson [1932] AC 562 (HL) 580, text to n. 33 infra.

29 Smith, John Maynard, The Therapy of Evolution (CUP, Cambridge, 3rd ed., 1975) ch. 12.Google Scholar

30 Dawkins, Richard, The Selfish Gene (OUP Oxford, 2nd ed., 1989) ch. 8.Google Scholar The statement in the text must not be oversimplified and does not suppose an exclusively mechanical interpretation of human emotion or morality. Discussion in Dennet, David C., Darwin's Dangerous Idea (Penguin, London, 1995) ch. 16Google Scholar; Segerstrale, Ullica, Defenders of the Truth (OUP, Oxford, 2000) esp. ch. 20.Google Scholar

31 We are not now concerned with the law's response to voluntary altruism, in particular in relation to the intervener's right to the expenses of the intervention, but it is not wholly irrelevant to note that the flat denial of any such right, as in Falcke v. Scottish Imperial Ins Co (1886) 34 ChD 234 (CA) 248 (Bowen L.J.), is now breaking down: Jones, G.H., ed., Goff and Jones on Restitution (Sweet & Maxwell, London, 5th ed., 1998) 461–82Google Scholar, whose line was given support in Surrey Breakdown Ltd v. Knight (CA, 27th April 1998, unreported).

32 Cf. Cicero, De Officiis 3.68, Aliter leges aliter philosophi tollunt astutias, leges quatenus manu tenere possunt philosophi quatenus ratione et intelligentia (There is a difference between the ways law and philosophy eradicate iniquity. Law does it so far as it can get a firm grip on it, philosophy by the power of reason and understanding).

33 [1932] AC 562 (HL) 580.

34 McLoughlin v. O'Brian [1983] 1 AC 410 (HL); Alcock v. Chief Constable of South Yorkshire [1992] 1 AC 310 (HL).

35 Or, more cynically, barely more than a label indicating miscellaneous restrictions designed to answer the question, Who then is my neighbour? more narrowly than would Lord Atkin's test of reasonable foreseeability: Caparo Pic v. Dickman [1990] 2 AC 605 (HL) 619 (Lord Bridge), 628 (Lord Roskill).

36 Rogers, W.V.H., ed., Winfield and Jalowicz on Tort (Sweet & Maxwell, London, 12th ed., 1984) 80.Google Scholar

37 Ibid., 15th ed., at 117.

38 The case for such a duty was well made by Weinrib, Ernest, “The Case for a Duty to Rescue” (1980) 90 Yale L.J. 247.CrossRefGoogle Scholar Further discussion in Wright, Richard, “Standards of Care in Negligence Law” in Owen, David G., ed., Philosophical Foundations of Tort Law (OUP, Oxford, 1997) 272–74.Google Scholar

39 Henderson v. Merrett Syndicates [1995] 2 AC 145 (HL) esp. 182 (Lord Goff); White v. Jones [1955] 2 AC 207 (HL); Griffiths v. Kent [2000] 2 All ER 474 (CA).

40 (1984) 156 CLR 41 (HCA).

41 Deane J. took the view that this was an unnecessary detour and preferred to ask directly whether this was such a breach of contract as made him liable for his profits. This is the preferable approach.

42 (1985) [1995] RLR 235 (Israel Supreme Court).

43 SEC v. Chenery Corporation 318 U.S. 80, 85–86 (1943).

44 Re Coomber [1911] 1 Ch 723 (CA) aff'g Neville J. [1911] 1 Ch 174. Compare Finn (supra n. 1) §2: “[I]t is pointless to describe a person — or for that matter a power — as being fiduciary unless at the same time it is said for the purposes of which particular rules and principles that description is being used.” See also Henderson v. Merrett Syndicates [1995] 2 AC 145, 206 (Lord Browne-Wilkinson).

45 [1911] 1 Ch 723, 728–29.

46 726–27 (Cozens-Hardy M.R.) 730–31 (Buckley L.J.).

47 See examples in supra n. 19.

48 In the discussion after the lecture Englard J. observed that many might doubt this proposition, in that the trustee can be said to be under a duty to make disclosure of his interest. This can indeed be further supported from cases, such as Maguire v. Makaronis (1997) 188 CLR 449 (HCA), noted Moriarty, S. (1998) 114 L.Q.R. 9Google Scholar, which refer to failure to disclose an interest as a wrong, which implies, or ought to imply if the word is used seriously, that non-disclosure is a breach of a primary obligation to disclose. However, in all such cases the wrong in question is always a breach of the obligation of disinterestedness. Full disclosure is no more than a condition of the beneficiary's consent, and fully-informed consent provides a defence to the action for that wrong, just as it will also negative the operation of undue influence. Analogously, in the law of insurance disclosure is not an obligation but merely a condition for holding on to the contract: Banque Keyser Ullmann SA v. Skandia (UK) Insurance Ltd [1990] 1 QB 665, 771–81 (Slade L.J.); [1991] 2 AC 249, 280 (Lord Templeman).

49 The action of account at common law lay against bailiffs and receivers of money, also against those who were given money to employ in commerce (pur marchaunder): Milsom, S.F.C., Novae Narrationes (1963) 80Google Scholar Seiden Soc. clxxix–clxxxii; SirFitzherbert, Anthony, New Natura Brevium (1534) 116.Google Scholar

50 (1711) 1 P Wms 140, 24 ER 329.

51 Phillips v. Homfray (1883) 24 Ch D 439 (CA), [1892] 1 Ch 465 (CA), discussed by The Hon. Justice Gummow, W.M.C., ‘Unjust Enrichment, Restitution and Proprietary Remedies’ in Finn, P.D., ed., Essays on Restitution (Sydney, 1990) 47, at 60–67Google Scholar; patents: Neilson v. Betts (1871) LR 5 HL 1, 22; De Vitre v. Betts (1873) LR 6 HL 319.

52 Nelson v. Rye [1996] 2 All ER 186.

53 Paragon Finance Plc v. D.B. Thakerar & Co [1999] 1 All ER 40 (CA), applied in Coulthard v. Disco Mix Club Ltd [2000] 1 WLR 707.

54 (1989) 61 DLR (4th) 14 (SCC).

55 Cf. Arklow Investments v. Maclean [2000] 1 WLR 594 (PC) 598; United Pan-Europe Communications NVC v. Deutsche Bank AG [2000] New Law Online Case No. 200059004 (CA) paras. 38–47.

56 Henderson v. Merrett Syndicates [1955] 2 AC 145 (HL).

57 [1955] 2 AC 145 (HL) 205 (Lord Browne-Wilkinson). This passage is set out below, text to n. 69.

58 [1998] Ch 1 (CA) 16, cf. text to n. 64.

59 Cf. Hoyano, supra n. 2. The quagmire is vividly apparent in AD Little, “Restoration for Breach of Confidence” [2000] LMCLQ 142, in which the author, seeking to explain Cadbury Schweppes v. FBI Foods (1999) 167 DLR (4th) 577 (SCO and having to cope with torts and equitable meta-torts, becomes bogged down in distinctions which, with the unification of the law of civil wrongs, will seem obviously indefensible and intolerable.

60 Somerton's Case (1433) YB 11 Hen 6, Hil, f 18, pl 10; Pasch pl 1; Trin pl 26, extracted in Fifoot, C.H.S., History and Sources of the Common Law (Stevens, London, 1949) 343.Google Scholar

61 SirMason, Anthony, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World” (1994) 110 L.Q.R. 238.Google ScholarCf. the other citations, supra n. 2.

62 [1998] Ch 1 (CA).

63 [1998] Ch 1 (CA), 16D and F.

64 [1998] Ch 1 (CA), 18AB.

65 See text from n. 20.

66 We have already noticed that this is essentially a judicial adoption of the position taken by Finn, supra n. 4 at 28, and R.P. Austin, supra n. 7 at 156, and text to those notes.

66a Elliott, S., “Fiduciary Liability for Client Mortgage Frauds” (1999) 13 Trust Law Int'l. 74, esp. 79–84.Google Scholar

67 To the same effect is R.P. Austin, supra n. 7, at 169–70. He says that the standard was originally set lower than that of common law negligence but has come to be treated as merely one application of it. One might doubt that it ever was lower, merely differently expressed.

68 Henderson v. Merrett Syndicates [1995] 2 AC 145 (HL) 189–94 (Lord Goff).

69 Henderson v. Merrett Syndicates, ibid., at 205. It is necessary to keep more overtly open the question whether, as seems likely, responsibility is sometimes thrust by circumstances upon a person, not voluntarily assumed. It is intriguing to notice that this conclusion is diametrically opposite to the theory advanced by McBride and Hughes to the effect that obligations contingent on an assumption of responsibility should all be torn out of the law of negligence and treated as examples of fiduciary obligation: McBride, N. and Hughes, A., “Hedley Byrne in the House of Lords: An Interpretation” (1995) 15 LS 376, at 387–89.Google Scholar